
    Railroad Co. v. Cunnington.
    1. Where a private road extends across the track and right of way of a railroad company, and connects with a public highway, the company is required to maintain across such private road suitable fences, or provide other protection against injuries which may result from animals passing from such highway, through the private road, on or along the ' railroad track.
    2. Books kept by a railroad company solely for its own use in the management of its business, are not admissible as evidence, when offered by the company, in an action against it by a stranger to such company seeking to recover damages sustained by the company’s negligence.
    Motion for leave to file a petition in error to reverse the judgment of the District Court of Mahoning county.
    A. Cunnington & Son, peddlers of queensware and glassware, were traveling on the public highway, in 1880, from Lowellville to Y oungstown. Their wares were contained in a two-horse wagon and a one-horse wagon. Night coming on and the road being rough, danger to their wares prevented them from proceeding further, and they determined to stop for the night, removing the wagons from the traveled portion of the road. They claim that they fastened the three horses: to the tail of the larger wagon by a strong strap. The road on which they were traveling ran parallel with and near to the railroad track of the Pittsburgh and Lake Erie Railroad Company. There was a private road twenty feet and upward in width, belonging to one Quiesner, leading from the public highway across the railroad track and right of way, to Quiesner’s residence on a farm near the railroad. The crossing for the private road was made at the time the railroad was completed. There was no fence or gate across the private road on either side of the railroad, nor was there any cattle-guard, at the private way crossing, across the railroad track. Late in the night, it is claimed, the horses became frightened at the approach of a freight train, broke their fastenings, ran along the highway a short distance to the private road, passed out that to the railroad track, and ran along the railroad track several rods until they were overtaken by the train and killed.
    In an action in the court of common pleas of Mahoning county to recover the value of the horses, the plaintiffs relied on the fact that no fence or gate or cattle-guard had been erected. The company denied that there was any obligation upon it to place such structures there, and requested the court so to instruct the jury, but the instruction was refused, and on the contrary the court charged the jury, that if they should find that, without fault of the plaintiffs, the injury was caused by-the absence of such structure, the plaintiffs were entitled to recover the value of the horses. To this ruling the company excepted.
    The company also claimed on the trial that the plaintiffs were precluded from recovering by contributory negligence, in camping so near the railroad track. The claim was also made that several trains had passed after the encampment, and before the arrival of the train by which the horses were killed; that the horses had not broken loose; that they had not been fastened, but had been suffered to wander along the highway, the private road and the railroad track. As tending to show such defense, the company called Jones, its master of transportation and superintendent of telegraph, as a witness, who produced the company’s register of trains, to show the number of trains which passed along that part of the road, after the encampment and before the arrival of such freight train. The witness did not speak as to any of the entries from personal knowledge of the fact recorded, but said the book was made at Pittsburgh from telegrams and that the trains were moved on .the information thus received. The court excluded the book and the testimony of the witness as to its contents, no claim being made that his memory was refreshed by anything in the book. To the decision excluding the evidence the company excepted.
    
      Yerdict and judgment for $300. Affirmed in the District Court. This is a motion for leave to file a petition in error to •reverse the judgments, and presents only questions of law. 80 Ohio L. 169.
    
      James P. Wilson, for plaintiff in error:
    1. There was no obligation to fence. Pierce on Rail. 417, 422; 43 Iowa, 207; 29 Ind. 545; Ib. 40; 47 Iowa, 76 ; 24 Ind. 222. 2. The train record and testimony of Jones in relation thereto were competent. 1 Grreen. Ev. (13th ed.) 486, 487, 550; Starkie’s Ev. 157.
    
      B. B. Murray and M. G. MoNabb, for defendants in error.
   Okey, J.

The act requiring railroad companies to fence their tracts (Rev. Stats. § 3324, note; 78 Ohio L. 199 ; 3 Rev. Stats, [by Aldrich] 184, note) exempts from .its operation ways used by the public, and requires cattle-guards to be placed where such highways cross the railroad track; but the statute is otherwise general. In Railroad Co. v. Newbrander, 40 Ohio St. 15, it was held that the necessities of the public and the company and its employes may be such as to create an exception with respect to the depot grounds and yai’ds, but that in such case it is the duty of the company ‘-‘to construct and maintain cattle-guards across its roadway and grounds, at the first point from the highway which will not interfere with the necessities and convenience of the public and the company.”

No express exception as to fencing is made in the case of -private roads or ways, nor is such exception to be implied from any other statutory provision, nor does it arise, as in case of depot grounds, from necessity. The protection against injury to animals, and incidentally to human life, afforded by properly constructed cattle-guards, at points where public highways cross railroad tracks on a level, is acknowledged to be of much importance; but if private roads leading from public highways across railroad tracks may be left without the same, or an equivalent protection, the utility of such guards at public highway crossings will be greatly impaired. ' To hold that such protection was not contemplated would be to violate not only the spirit, but the plain words of the statute. The company has discretion, no doubt, to determine whether such protection shall consist of gates or other structure; but, whatever the form, the protection afforded must be reasonable, and reasonable facilities to the owner of such private road must also be afforded, and moreover there must be, on the part of the company, reasonable diligence to keep such structures in repair. The whole subject has been recently considered in Indiana, where the legislation is similar, and after disapproving some of the decisions in that state, the same view here stated is enforced by the supreme court in an able opinion by Elliott, J. Indianapolis., etc. Ry. Co. v. Thomas, 84 Ind. 194.

There was no error in excluding the register of trains. It was not of a public or quasi public character, but made solely for the convenience and use of the corporation in managing its trains, and hence was not admissible against a stranger. The witness was not prevented from using it to refresh his memory, nor was his testimony, as to any fact within his knowledge, excluded. His evidence as to the contents of the book stood on no better ground than the book itself. The exclusion of both was proper. Pittsburgh, etc. R. Co. v. Noel, 77 Ind. 110; Chase v. Railroad Co., 38 Ill. 215; Whart. Ev. §§ 661-663.

Motion .overruled.  