
    The Cincinnati and Zanesville Railroad Company v. Richard Smith.
    The servants of a railroad company, in operating its trains, are hound to use ordinary care to avoid injury to domestic animals trespassing on the railroad.
    Where such trespassing animals were killed hy a train, if the servants of the company, having the train in charge, hy the exercise of ordinary care, and with due regard to their duties for the safety of the persons and property in their charge, could have seen such animals on the track in time to have saved them, it was their duty to have done so, and for their negligence in this respect, where the owner is not guilty of contributory negligence, the company will be liable.
    A person skilled in the running of railroad trains may be asked, as an expert, upon an assumed state of fact which the evidence tended to prove, whether or not, in the case assumed, the brakesmen were in their proper places.
    Error to the Court of Common Pleas of Eayette county, reserved in the District Court.
    The facts appear in the opinion of the court.
    J. D. Wallace, for the plaintiff'in error:
    I. Did the Court of Common Pleas err in charging the jury, “That the agents and servants of the railroad company, in running trains on the road, were bound to use ordinary care to save animals trespassing on its track, and that if the said servants and agents in charge of the train might, in the exercise of ordinary care, have discovered the plaintiff’s horses (though they were trespassing upon defendant’s railroad track or roadway), in time to have prevented their destruction, it was their legal duty to do so?”
    
      Pierce on Railways lays down the rule as follows (pp. 322, 332):
    “In the absence of a legal obligation to fence its-track, the exemption of the company from liability for injuries to cattle straying upon it, except where the injury was wantonly perpetrated, has been maintained on well defined principles of law. It is by law invested with the right to the exclusive occupation of the land within the limits of its location, except in certain cases where it crosses-public or private ways; it is clothed with the power to operate a railroad as a common carrier within those limits,, according to the usage of railroads. Speed is the distinguishing characteristic of this method of transportation, which it is desirable and lawful to maintain in the highest degree consistent with the public safety. Upon what principle can it be required to abate that speed in favor of a party who wrongfully causes or allows his cattle to pass' upon the track ?
    “If a trespasser place his cotton, or other combustible property, wdthin the limits of the railroad line, he can not demand that the company shall cease the emission of sparks from the engine, or stop the train to extinguish the fire. What greater right can a trespasser assert for the protection of his cattle than for that of any other property?' He has brought the injury upon himself, not only by his own negligence, but by a positive wrongful act of trespass;- and according to general principles of the common law, he is without remedy under such circumstances. The obligation which the common law imposes on a party to exercise ordinary care in the use of his property to prevent injury to-that of another, defines the relations of parties both of whom are exercising a right, and has no just application to cases where one is a trespasser on the property of another.
    “If it be admitted that the company, on which no obligation to fence its road rests, is not responsible for damages to-cattle comingthereon from the adjoining land, provided it exercises ordinary care to avoid injury, it deserves consideration, whether the running of its trains on its own road or track •.at the usual rate of speed, without halting before obstructions (other than human beings) unlawfully placed, upon it, does not fulfill the requirements of ordinary care as against such wrong-doer.” See also Railroad v. Rehman, 13 Wright (Penn.), 101; 5 Am. Law Reg. 49, which is on all fours with the case at bar.
    Will it be claimed that a different rule prevails in Ohio? The case of Kerwhacker v. C. C. & C. R. R. Co., 3 Ohio St. 172, decides two principles:
    1. That the owner of cattle, etc., in allowing them to ■run at large on the range of uniuclosed lands, is not chargeable with an unlawful act. The cattle are not trespassers. The -owner is not liable in trespass.
    
    2. That the owner being guilty of no wrong in allowing his cattle to run at large, there is no proximate contributory negligence on his part, which precludes him from recovering for the loss of his cattle killed by the railroad -company from the want of ordinary care, after they were -discovered by the persons in charge of the train.
    It is true that Judge Bartley proceeds to discuss the ■question in what cases the plaintiff', though a wrong-doer, may recover,and announces some “ obiter” that might seem to controvert our position. But the facts in the case at ■bar are such that his remarks do not apply here.
    In Central Ohio R. R. Co. v. Lawrence, 13 Ohio St. 69, the court say: “There was no contributory negligence on the part of plaintiff in the Kerwhacker case; if there was, he could not recover.” 1 Handy, 193.
    But neither the case of Kerwhacker, nor the case of Cranston & Tolmer v. C. H. & D. R. R. Co., 1 Handy, 193, is similar to ours. In those eases the plaintiffs’ negligence was too remote.
    The distinction between the Kerwhacker case and the one at bar is made perfectly manifest by the following from Judge Ranuey’s opinion, in C. H. & D. R. R. Co. v. Waterson and Kirk, 4 Ohio St. 432 : “ The owners of stock, running at large and straying upon a railroad track, are guilty of mo trespass, of no wrong, and are in no fault; and there is, therefore, no room for the application of the doctrine which determines when a party in the wrong may nevertheless recover.”
    In our case, Smith’s horses were trespassing on the railroad at the time they were killed. They were breachy,. broke down a good staked and ridered fence, and Smith was in every sense a trespasser and liable to the company as such. 28 Ind. 244.
    Our case stands as if the common law of England was< in force, requiring owners to keep up their stock, and it had been running at large, and got upon the track by their own act of trespass. See 4 Ohio St. 433, bottom; also, Alger v. Miss. R. R. Co., 10 Iowa, 270, 271, which makes-the distinction we claim.
    The reason given in the ease cited from 4 Ohio St., why the owner could not recover, is that “by his failure to make the fence, he could not, after the breach of his contract, suffer' his animals to go upon the track without being liable for their trespass. In such case he would be a wrong-doer and not entitled to demand, the same, degree of care as though he did not occupy that position. In such case nothing short of gross* negligence would charge them.” See pp. 434, 435.
    That case is parallel to ours. The only difference is in the mode of establishing the trespass. The one was produced by a breach of the contract; the other by a breach of the close.
    Intimately connected with this question, and forming an-important element in it, is the consideration that the-plaintiff in this case knew his horses to be breachy and unruly. See 3 Ohio St. 183, as to the duty of the owner in-such case; also, Pierce on Railways, 325, note 1.
    II. The court below erred in the instructions given to the jury as to what would constitute contributory negligence in the plaintiff, and also in the instructions :
    “ That if the plaintiff’s horses were breachy, and he knew them to be so, and although they had, by their breach!ness escaped over the-fence and came upon the defendants’ railroad track, and were trespassers thereon at the time they were killed ; yet if he took ordinary and reasonable care to-keep bis horses from the track, having in view their breachy character, the defendant was liable if they were killed from the want of ordinary care and diligence on the part of its servants. The test is not (nor is it the rule) if the plaintiff knew, or might reasonably believe; but did he exercise such-care as prudent persons are accustomed to use under the-circumstances?” C. C. & C. R. R. Co. v. Terry, 8 Ohio St 581.
    If the occupancy of the track by the horses was unlawful, the intention or effort of the plaintiff can not make the-occupancy lawful, and unless it could so make it lawful, the owner is bound to restrain them at his peril. The Railroad v. Rehman, 13 Wright (Penn.), 101; 5 Amer. Law Reg. 49-51; 7 Amer. Law Reg. 457; 21 Vt. 129; 25 Vt. 150 ; 6 Wharton (Penn.), 311.
    In case of Railroad v. Skinner, 19' Penn. St., the same-question was presented, and decided as we claim it. The question is not, “Did the company use ordinary care to discover the trespassers-?” but, “ Did its servants use ordinary care under all the circumstances to avoid the injury, after the animals were discovered on the track ?” Vandergrift v. Redike, 2 N. J. (Zab.) 185; Clark v. Syracuse and Utica R. R., 11 Barb. 112; Williams v. Michigan Central Railway, 2 Mich. 250; Lafayette and 2nd. R. R. v. Sleviner, 6 Porter (Ind.), 141; 12 Eng. Law and Eq. 520; 5 Greenl. 356; 29 Maine, 282, 307; 19 Johns. 385; 5 Denio, 55. Affirmed,, see 4 N. Y. 349. It will not d.o to say that if the party took ordinary care to prevent a trespass, he is not responsible for the trespass committed. No difference if he did take such care, he is nevertheless a trespasser. The charge, therefore,, given was erroneous. See Pierce, 325-327.
    III. The third question is : Did the court err in charging the jury as follows?
    “It is claimed by the defendant’s counsel, that off the crossings of the railroad the servants of the company have a right to presume that there are no trespassers on the roadway í that they are not bound to look out for trespassers, except for the 
      
      safety of passengers or property in their charge.” It is also claimed by defendant, that inasmuch as the road at the place where the plaintiff’s horses got on the track and were killed, was fenced, on that account the defendant’s servants in charge of the train were not bound to look out for trespassing animals. “ Upon this question I can only charge you this, that if the road was fenced at the place where the horses got on and were killed, and this was known to the defendant’s employes, you have a right to look to that circum ■stance as reflecting upon, and in determining whether the employes exercised ordinary care in the management of the train. But if they might, in the exercise of ordinary care, have discovered the animals, although they were trespassers ■on the roadway, other than at a crossing, in time to have prevented their destruction, it was their legal duty to do so. And if from such want of ordinary care they were not discovered in time to prevent their destruction, the defendant is liable to the plaintiff for their loss.”
    ' The statement by the court of the legal proposition •claimed by the defendant, was equivalent to an express request to so instruct them as to the law, and the court should have charged fully the law on the subject, or not «barged at all.
    1. The charge of the court amounts to a denial of the proposition; or,
    2. To such a modification of it as destroyed its force, and prevented the jury from giving us the benefit of it; or',
    3. The charge as given misled the jury, and had qualifi■catious attached which were erroneous.
    Are the employes bound to look out for trespassers at sail? Are they bound to look out upon a fenced road? “ Are they to suppose or presume that the adjoining landowners have breachy and unruly animals, that will break down the fences and endanger their lives by trespassing on the track?”
    The first question is clearly answered in an article on the liability of railroad companies for negligence, in 7 American Law Reg. 450, June No. 1868; Redfield on Railways, 361.
    
      The second question is substantially the same as the first, ■with the additional element that the road was fenced.
    This proposition, “ that off the crossing, the company’s servants have a right to presume that there are no trespassers,” is the predicate of the next one, “that the employes are not bound to look out for trespassers, except for the •safety of passengers, etc., and not for the safety of the trespassers.
    They are both dependent to some extent upon one another, and in this case admitted proposition : “ That at all -other places than the crossings, the company is entitled to the exclusive possession of the roadway.”
    
    Every man (railroad employes included) has the right to presume that no person will do an unlawful act: that no person will be guilty of a trespass that will imperil human life and property of great value. Having the right so to •presume, he is not bound to use ordinary care to discover ■trespassers.
    “ The utmost that could be required of him is, after the trespassers have been discovered, then to do his legal' •duty (whether that be to use ordinary care or not), and if they discharge that duty the company is not liable, although the animals may be destroyed.” Redfield on Railways, •361, sec. 165; Pierce on Railroads, 334-336.
    ■The rule, as we claim it, is recognized by the Supreme “Court in the case of G. O. R. R. Go. v. Lawrence, 13 'Ohio St. 703.
    IY. The fourth question is : Did the court err in permitting the following question to be asked of John Millikan, put by the counsel for the plaintiff, he being their witness, viz : “ If a loaded train of ten or twelve cars is running at the rate of twelve or fifteen miles per hour between stations, and two brakesmen are all that are on and allowed to the train, and both of them are in the passenger car at the rear of the train, what sort of a position is that for them to be in, in order to have the proper use and benefit of the brakes, .in case of sudden danger or emergency requiring the train to be stopped or its speed checked ?” And in refusing to> rule out the answer which said witness gave to said question, viz : “It is not the proper place?” If we are correct, in the proposition that the employes of the road were to presume that there were no trespassers upon the roadway, and were not bound to look out for trespassers, and the obligation for care (whether ordinary or light) devolved upon them after the discovery of the animals, and not to discover them, then the plaintiff had no right to inquire into the position of the brakeman on the road, nor whether it was-a reasonable or proper position or use of them. The reasoning of the case in 13 Ohio State, 71, applies to this-question. The evidence shows the train was running-forward, and not backward. This is a mixed question of law and fact. It assumes that the witness knows and may instruct the jury as to what is a proper use, etc., in the-ease. What was a proper use, and whether the defendantshacl, or could have, the proper use of the brakes, was a. question for the jury to decide upon the proof, and under the law as given them by the court. It was not proper to-submit this question to the opinion of witnesses.
    But conceding he had that right of inquiry and that the-question is proper, is not the answer clearly incompetent t The purport of the answer was, that in the opinion of the-witness the defendant was guilty of negligeuce in that respect. The witness, if permitted to answer the question at all, should have stated the effect of the position of the-brakemen; how, or in what manner, and in what particular, the brakemen could, or could not, have the full power or control of the brakes, etc., so as to have left it for the-jury to say whether their position was a proper one- or not.
    It might just as well have been asked, “ Assuming the brakeman to have been in the position stated, was that ordinary care ?” and he had answered, “ it was ordinary-negligence.”
    
    In conclusion, we repeat the language of Gibson, J., in 19 Penn. 298: “ It is a high and holy charge of th& courts to hold the owners of cattle to their duty, and not permit them to imperil human life by their negligence, nor to recover from the railroad company for cattle killed under such circumstances.”
    
      JR. A. Harrison, for the defendant in error:
    The only questions made in this cause, which I deem it necessary to argue at much length, arise upon the charge of the court, and the refusal of the court to direct the jury as the defendant below requested.
    The following is the charge as to the points referred to:
    “ The defendant’s servants in this case were not bound to use extraordinary care or extraordinary means to save the plaintiff’s horses. But they were bound to use what, in that peculiar business, is ordinary care and diligence; and if the loss of the horses was the result of a want of that ordinary care and diligence, the defendant is liable. .
    “ The defendant had the right to the free and unobstructed use of its railroad track. And the paramount duty of the employes is the protection of the passengers and property in the train, and the train itself.
    
    “ But this being their paramount duty, they are bound to use ordinary care and diligence, so as not unnecessarily to injure the property of others.
    “Under the circumstances of the case, could and would reasonably prudent men, skilled in that kind of business, keeping in view, as their paramount duty, the protection and safety of the train, its passengers, and the property on and about it, intrusted to their care, in the exercise of ordinary care, have stopped the train and saved the horses? If so, and the defendant’s servants did not so act, the defendant is liable in this case; otherwise the defendant is not liable.
    “ In considering the paramount duty of the employes in the proper management of the train for the safety of passengers and property of its train, you have a right to determine whether they have other duties to periorm. It is claimed the engineer had other duties than watching the 'track to perform — which were necessary for the safety of the passengers and property of the train — such as gauging his steam, watching time-table, regulating his supply.oí water, examining his machinery, watching for the station-signal, etc. If such were the case, he had a lawful right to perform these duties, and was not bound to neglect them to save the plaintiff’s horses, nor bound to watch the track while performing these duties. They were only bound, under the circumstances of the case, to use ordinary care .and diligence to save the horses — the safety of the passengers and property of the train being their paramount duty; and if the jury find, from the evidence, that the persons in charge of the engine were attending to the duties of the train approaching the station at the time ’of the accident, these duties were paramount to watching the track for trespassing animals; and if the horses were not, on that account, discovered in time to save them by using ordiuary means to stop the train, the defendant is not liable.
    “It is claimed by the defendant’s counsel, that off the crossings of the railroad the servants of the railroad company have a right to presume that there are no trespassers •on the roadway; that they are not bound to look out for trespassers except for the safety of passengers or property in charge. It is also claimed that inasmuch as the road at the place whore the plaintiff’s horses got on the track and were killed was fenced, on that account the defendant’s servants in charge of the train were not bound to look out for trespassing stock. Upon this question I only can charge you this: That if the railroad was fenced at the place where the horses got on and were killed, and this was known to the defendant’s employes, you have a right to look to that circumstance as-reflecting upon and in determining whether the employes exercised ordinary care in the management of the train. But if they might, in the exercise of ordinary care, have discovered the animals, although they were trespassers on the roadway, other than at a crossing, in time to have prevented their destruction, it was their duty to do so; and if from such want of ordiuary care, they were not discovered in time to prevent their destruction,., the defendant is liable for their loss to the plaintiff.
    “ If the plaintiff’s horses were breachy and he knew it,, but he was so indifferent to their safety as to turn them into an insufficient inclosure, from which he knew, or-would reasonably have believed, that they would or might get on the defendant’s track, and they did so get on the track,., the defendant is not liable, unless its agents and servants-either willfully killed them, or killed them on account and. by reason of such gross neglect as amounted to wantouness. But if plaintiff'took ordinary and reasonable care to keep his horses from the track, having in view their breachy character (if they were breachy), notwithstanding which they casually got out of the inclosure and on the track, and .were-trespassers thereon when killed, the defendant is liable if they were killed on account of the want of ordinary care-an d diligence as I have defined those terms to you, although the horses had by breachiness escaped over the-, fence and on to the defendant’s railroad track. And in determining whether the plaintiff' was or-was not guilty of the negligence attributed to him, you may look, among' other circumstances, to the fact whether the horses had-been kept in that inclosure, without their escaping, for any length of time previous to the night on which they were ■ killed.”
    The counsel for the company thereupon requested the - court to give the jury the following instruction, viz:“That if the jury find that the plaintiff’s horses werebreaehy, and broke down the fence where they were pasturing adjoining the defendant’s road, and during the-night, about half-past one o’clock", were killed by defendant’s train while they were trespassing on defendant’s track,. the company is not liable except the company’s servants were guilty of gross negligence; that under such circumstances the defendant was exempt from using ordinary care ■ to save the animals.” Which instruction the court refuse 1 to give.
    Properly viewed, the instructions were at least as favor— able to the company as they could have been without disregarding the doctrines well settled by the uniform current of judicial decisions, except on two points.
    One of these points is, that the mere fact that the plaintiff’s horses were trespassing on the track of the defendant’s road when they were killed, did not prevent the plaintiff from recovering for the injury he sustained by their loss, if they were killed through the negligence of the agents of the defendant.
    The other point is, that it was the duty of the employes of the company in charge of the locomotive which was run against the horses and killed them, to have seen and saved the horses, provided they could have done so by the exercise of ordinary care and diligence, and with proper regard for the safety and protection of the persons and property in their charge.
    And the general inquiry submitted to the jury for determination was precisely what this court have held to be the only proper inquiry in such cases. C. O. R. R. Co. v. Lawrence, 13 Ohio St. 66; C. C. C. R. R. Co. v. Elliott, 4 Ohio St. 474.
    
      First, then, was the Common Pleas right in directing the jury that if they believed from the evidence that the horses were killed through the carelessness or negligence of the agents of the company in the management of the train, the mere fact that the horses were trespassing on the track of the road, would not prevent the plaintiff from recovering for the injury?
    The general principle applicable in such cases is, that where the negligence of the defendant is the proximate cause of the injury, but that of the plaintiff only remote, the action is maintainable. Kerwhacker v. C. C & R. R. Co., 3 Ohio St. 172, 173, 196; C. C. & C. R. R. Co. v. Elliott, 4 Ohio St. 476; Trow v. Vt. Cent. R. R. Co., 24 Vt. 487, 495.
    Every one in the conduct of that which may be harmful to others, if misconducted, is bound to the use of due care •and skill; and the wrong-doer is not without the pale of the law for that purpose. Kerwhacker v. C. C. & C. R. R. Co., 3 Ohio St. 172, 173, 199; Cranston & Folmer v. C. H. & D. R. R. Co., 1 Handy, 193.
    The following principle may likewise apply: Where the injury results from the negligence of both parties, the injured party, although at fault to some extent at the time, may, notwithstanding this, be entitled to damages for au injury which he has used ordinary care to avoid, but which the other party has not used ordinary care to avoid. Same cases, in 3 Ohio St. 172, and 1 Handy, 193.
    The fact that the horses escaped from the plaintiff's pasture and got upon the railroad, was not an immediate cause of the injury; this was the immediate result of the collision of the train and the horses upon the track of the defend•ant’s road. See opmiou of Mcllvaine, J., in Methven’s case, announced June 4, 1872.
    The subject of proximate and remote cause of injuries! resulting from negligence, is fully considered in the case of Pennsylvania Railroad v. Kerr, 62 Penn. 353.
    The judge, delivering the opinion in Methven’s case, said : “ Now, under our statute, it may be conceded that if the injury results from the carelessness or negligence of the company, or its agents, in the management of the train, the owner would be entitled to recover, as in Corwin’s case, unless his fault toas also an immediate cause of the injury, as, for instance, if he had driven his cow upon the road, or in the neighborhood of the road, and had left her there, or had done some other positive act increasing her danger. And this would be so, whether the road was fenced as required by the statute or not, or whether the injury resulted byi’eason of the want or insufficiency of fence, etc., or not.” .
    The precise question now under consideration was decided in the recent case of Illinois Central R. R. Co. v. Middlesworth, 46 Ill. 494. The doctrines of that case sustain, in every particular, the charge of the Common Pleas in the case at bar. I request the court to examine the whole case. It overrules four previously reported cases decided by the same court, in which the doctrines contended for by the counsel for the plaintiff in error in this case had been» ruled. The court found, in that case, that the proof showed the plaintiff had made use of one side of the company’s fence along the roadway for an inclosure, in which the stock was penned, and through which they had broken and got upon the track; but they were of the opinion that, such act of carelessness, on the part of the plaintiff, will, not lesson the defendant’s liability, where the exercise of ordinary care and skill upon its part would have prevented the'injury.
    
    In Cranston & Folmer v. C. H. & D. R. R. Co., 1 Handy, 201, 202, Gholson, J., after reviewing the leading cases on this subject, both English and American, said:
    “The act claimed in this case to be wrongful was the-running of a locomotive upon or against the property of' the plaintiffs, then being on the railroad track. All the cases which have been cited admit, that if this act was done-intentionally, it would be wrongful, though the property might be wrongfully on the track of the road. If the-mere fact of the property being wrongfully on the land of the defendants gave no right to kill and destroy, and such, an act would have been wrongful-on the part of the defendants, is it not a duty always incumbent to take care-that no injury be done to the property of others?
    When cattle are killed through the negligence of the-railroad company in the management of their train, the owner is not precluded from the right to recover damages by the-fact that the cattle were trespassers on the railroad. To produce that result the owner must have been guilty of actual negligence, not of a mere technical wrong. Isbul v. N. Y. R. R. Co., 27 Conn. 393.
    The liability of a railroad company for the killing by a. train of an animal which wrongfully strayed upon the track, depends on the question whether the engineer of the train used ordinary care to avoid doing injury. And this question is lor the determination of the jury, in view of the circumstances of this particular case. Bemis v. Conn., etc., R. R. Co., 42 Vt. 375.
    
      Under chapter 169 of the laws of the ninth general assembly, a railroad company are liable for swine killed, while running at large at a point on the road where there was no fence, and where they had a right to fence; and the fact that the swine were at large, contrary to a regulation of the county, will not defeat the plaintiff’s right to recover, where no willful act of the owner occasioned the injury. Spence v. Chicago Railroad Co., 25 Iowa, 139.
    If the engineer of a railroad company sees a cow upon the track at a distance of two or three hundred yards, and makes no attempt to slacken speed, the railroad company are liable for an injury to the animal in consequence, even though she was improperly on the track. Aliter, if the cow was suddenly driven on the track by a dog, and there was no fault on the engineer’s part. Ill. R. R. Co. v. Wren, 43 Ill. 77.
    2. The act of March 25, 1859, providing for inclosing railroads by fences and cattle-guards (S. & C. 331), which was in force when the horses of the defendant in error were killed, made the plaintiff' in error liable for the damages resulting from the killing of the horses by the carelessness or negligence of the company, in the management of the train of cars which killed the horses. The provision of the statute is this: “ Such company shall be liable for all damages which may result to' horses, cattle, or other domestic animals, by reason of the want or insufficiency of such fences, road crossing, or cattle-guards, or 5z/any carelessness or negligence of such company, party, or agent or agents thereof.” In a note to this provision, J udge Swan states what was the ruling in the ease of the C. H. & D. R. R. Co. v. Waterson & Kirk, 4 Ohio St. 424, before the passage of this act. The opinion of the learned annotator evidently is, that the statute abrogated or modified the rule adopted in that case. The amendment of the act in 1871 (Ohio Laws, 78), does not affect the operation of the original act, upon the rights and liabilities of the parties. The amendatory act contains precisely the same provision,as to the liability of railroad companies for injury to animals, as the original act did.
    
      Second. Was it the duty of the agents of the company in charge of the locomotive which was run against the horses and killed them, to have seen and saved the horses, provided they could have done so by the exercise of ordinary care, skill, and diligence, and with proper regard for the safety and protection of the persons and "property i-n their charge?
    The charge of the court that such was the duty of the agents of the company is fully sustained by the very recent case of S. & N. R. R. Co. v. Wainscott, 3 Bush, 149. The syllabus is as below:
    “The railroad company is not responsible for the value of a mule which passed through a gap in the fence near the railway, jumped on the track, only about fifty yards ahead of the locomotive, and was killed by an inevitable collision, there being no proof of negligence, unskillfulness, defective machinery, or recklessness.
    “ Had the mule been on the railroad track far enough ahead to enable the engineer, by proper means, to stop the locomotive before it reached the animal,, or to have enabled him to retard the train’s progress until the mule could have '■been driven out of all danger of collision, it was his duty to see and save the mule, and, for failing to do so, the railroad company would have been responsible for its value.”
    “ If a cow on a railroad track can he seen some distance ahead of the conductor, and, by the ordinary means, he could get her off unhurt, the company is responsible in damages for an injury arising from his- failure to use those means.” Richmond v. Sacramento R. R. Co., 18 Cal. 351. See also Ill. C. R. R. Co. v. Middlesworth, 46 Ill. 494.
    If'by the use of ordinary care and diligence animals on a railroad track can be saved from injury, the company must employ that degree of care. Ill. C. R. R. Co. v. Baker, 47 Ill. 295.
    The rule laid down in the charge of Judge Dickey, if properly and firmly applied, will not only prevent unnecessary and cruel destruction of live stock, which may casually get upon railroad tracks, but it will, in many instances, protect and save persons and property carried on railroad trains.
    
      Third. The interrogatory propounded to John Millikan, and his answer, to which the counsel for the company objected, were competent. The witness was interrogated as an expert.
    The form of the interrogatory was correct. The facts upon which the opinion of an expert is asked should be put to him hypothetically. Woodbery v. Obear, 7 Gray, 467, 471.
    The question put to the witness presented a hypothetical case, and was answered as such. It did not make the witness a judge of the facts assumed as the basis of the question.
    The other testimony in the case showed of how many cars the train was made up, at what rate the train was running when, it collided with the horses, and where the brakemen were at that time.
    Can there be any doubt that a man of Millikan’s knowledge and experience in the running and management of trains, may testify at what place on a train a brakeman can use the brakes promptly and efficiently when the safety of persons and properly on the train required it to be stopped or its speed checked as soon as "practicable ?
    In Rust v. Eckler, 41 N. Y. 428, it was held, that in an action to recover damages for breach of warranty, in the sale of a quantity of cheese, where the defendant claims that the cheese was injured by storage in an improper place by the plaintiff’s agent, it is admissible to ask such agent, who was shown to have had experience in dealing in and handling cheese, whether “ he saw anything in the condition of the cellar, or its surroundings (where the cheese was stored by him), that rendered it an improper and unlit place to put it.”
   "White, J.

The plaintiff below, Richard Smith, sues the defendant below, the Cincinnati and Zanesville Railroad Company, to recover the value of two horses alleged to have been killed through the negligence of the servants of the defendant in operating oue of its trains. The inclosure of the plaintiff' adjoined the railroad of the defendant; and from this inclosure, on the night on which the horses were killed, they escaped onto the railroad.

On the trial, questions arose as to the breachy character of the horses, and as to the insufficiency of the fence separating the inclosure from the railroad. The defendant claimed that considering the character of the horses, and the character of the fence, the plaintiff was guilty of contributory negligence, and therefore could not recover. But these questions were properly submitted to the jury, who must have found that the plaintiff was not guilty of the negligence imputed to him.

The whole charge is set out in the bill of exceptions. Considering its several parts in connection, and giving to the whole a fair construction, we deem it necessary only to notice two particulars, in which it is objected to.

These are: 1. Whether the fact that the horses were trespassing on the track excused the servants of the defendant from the exercise of ordinary care; and, 2. Whether that fact, and the additional one that the road was fenced, excused the engineer, as respects the owner of stray animals, from looking ahead to see whether such animals were on the track or not.

In regard to the first of these particulars, it is contended, on behalf of the railroad company, that, as the horses were trespassing on the railroad, the company was exempt from using ordinary care to save them, and that it was only liable for what is called gross negligence.

The court instructed the jury that the defendant had the right to the free and unobstructed use of its railroad track, and that the paramount duty of its employes was the protection of the passengers and property in the train, and the train itself. But this being their paramount duty, they were bound to use ordinary care and diligence so as not unnecessarily to injure the property of others.

We think the charge stated the law correctly. We see no good reason, in principle, why a party, so far as may be consistent with the full enjoyment of his own rights, ought not to use ordinary care so as not unnecessarily to injure the property of others.

It is true, the rule contended for by the counsel of the plaintiff in error, is sustained by a number of authorities. But the later and better considered eases are to the contrary. Illinois Central R. R. Co. v. Middlesworth, 46 Ill. 494; Bemis v. Conn., etc., R. R., 42 Vt. 375; Isbul v. N. Y. R. R. Co., 27 Conn. 393; Redfield’s Amer. Railway Cases, 355, 356.

The rule contended for has "never been adopted in this state. It is, moreover, as respects railroad companies, inconsistent with our statute law on the subject. S. & C. 331.

The facts in the case of the C. H. & D. R. R. Co. v. Waterson & Kirk, 4 Ohio St. 424, cited and relied upon by the « counsel of the plaintiff in error, were different from those in the case now before us, and we do not regard the rule —there laid down, as to the liability of the company in that case, as applicable to this.

From what ha3 been said of the charge in the first particular named, it would seem to follow that it is unobjectionable as respects the second. If it was the duty of the servants of the company, so far as was consistent with their other and paramount duties, to use ordinary care to avoid injuring animals on the track, they were, of course, bound to adopt the ordinary precautions to discover danger, as well as to avoid its consequences after it became known.

The fact that the road was fenced, at the place of collision with the horses, was a circumstance to be considered in connection with the other circumstances of the case, in determining whether the engineer was guilty of negligence in not looking ahead and discovering the danger in time to avoid it. The fact that the road was fenced rendered it less probable that wandering animals would be on the track; but it can not be said that the engineer, as a matter of law, by reason of the fences, was wholly excused from keeping a lookout ahead of the train.

If the servants of the company, in charge of the train, having due regard to their duties for the safety of the persons and property in their charge, could, by the exercise of ordinary care, have seen and saved the horses, we think they were bound to have done so. Bemis v. Conn., etc., R. R., supra, 381; Louis. and Nash. R. R. Co. v. Wainscott, 3 Bush, 149.

John Millikan was called as a witness by the plaintiff below and was interrogated as an expert. He had been, prior to being called as a witness, in the employment of the defendant, several years, in different capacities, from brakeman to conductor of a passenger train; he was engineer on the day freight, and well acquainted with the defendant’s road at the place where the horses were killed. After testifying as to the number of brakemen usually on the trains run by him on defendant’s road, and in regard to the number of brakemen required on a train of ten or twelve cars, and their proper positions respectively, the plaintiff’s counsel asked him the following question:

If a loaded train of ten or twelve cars is running at the rate of twelve or fifteen miles per hour between stations, and two brakemen are all that are on and allowed to the train, and both of them are in the passenger car at the rear end of the train, what sort of a position is that for them to be in, in order to have the proper use and benefit of the brakes in case of sudden danger, or emergency, requiring the train to be stopped or its speed checked ?”

The answer was : “ It is not the proper place.”

We see no objection to this evidence, nor any substantial objection to the form of the question. What is a proper and what an improper place for the brakemen on the train, may be shown by a witness skilled in the business. The evidence tended to prove the state of fact assumed, in the question. If the jury should find the facts to be as they were assumed, the testimony of an expert might be used to show that the brakemen, under the state of fact, were not in the proper place for the prompt and efficient discharge of their duty.

In regard to the claim that the verdict is against the evidence, it is only necessary to say, we find no sufficient ground to warrant our interfering with the action of the court below.

Judgment affirmed.  