
    McKiney v. Cleveland, Cincinnati, Chicago & St. Louis Rd. Co.
    (Decided January 15, 1931.)
    
      Messrs. BurTchardt & O’Brim, for plaintiff in error.
    
      Mr. Harry N. Boutzohn, for defendant in error.
   Allread, J.

The action was brought by Mack McKiney against the Cleveland, Cincinnati, Chicago & St. Louis Railroad Company for the= negligent killing of two mules which had strayed onto the railroad tracks from the farm where McKiney lived. The case was brought in the municipal court, and submitted to the judge of that court, a jury not being required. The finding and judgment of the court was for the railroad company. The case was then taken on error to the court of common pleas where the judgment of the municipal court was affirmed. The case is, now brought to this court on error.

In the municipal court two questions were presented : First, as to the contributory negligence of the plaintiff as the owner of the mules; second, as to the negligence of the defendant in operating, its trains.

If the judgment is right upon either proposition it must be affirmed.

Upon the first question we cannot escape the conclusion that the plaintiff was not negligent' in the confining of the mules or in caring for them after they escaped from their confinement. It may be true that the plaintiff was not as careful as was possible in the confinement of his mules, but after the same had escaped he and his son with diligence followed up the mules and attempted to recapture them. We are of opinion that the evidence does not justify a finding by the court that the plaintiff was negligent. We are therefore required to examine the record on the issue as to the negligence of the railroad company in operating its trains.

The claim is made on behalf of the railroad company that the company was not required to fence at the point where the mules went on the track, for the reason that there were sidings and public streets and thé use of the sidings and streets would exclude the idea of fencing.

The first case considered is Cincinnati & Zanesville Rd. Co. v. Smith, 22 Ohio St., 227, 10 Am. Rep., 729. In that case the syllabus is:

“The servants of a railroad company, in operating its trains, are bound to use ordinary care to avoid injury to domestic animals trespassing on the railroad.
“Where such trespassing animals, were killed by a train, if the servants of the company, having the train in charge, by 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 their1 negligence in this respect, where the owner is not guilty of contributory negligence, the company will be liable.”

In the opinion the court says, at page 245 of 22 Ohio State:

“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; * * * 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, therefore, the mules were actually trespassers on the right of way and the tracks of the company, they were still entitled to due care on the part of the drivers of the train to avoid injury.

The plaintiff in error claims that he, as the owner of the mules, was entitled to the benefits of a fence along the railway as a protection to his stock.

The case of Railroad Co. v. Newbrander, 40 Ohio St., 15, was one which involved exceptions to the statute providing for cattle guards. The statute provides for both fences and cattle guards, and it was held in the Newbrander case-.

“1. The Act of April 18, 1874 (71 O. L., 85), imposes upon a railroad company the duty of constructing and maintaining necessary cattle-guards wherever its road crosses a highway. This statute may be construed as allowing exceptions, required by public necessity and convenience and the proper use of a station yard by the company.
“2. When the company is relieved from this requirement, for the above reasons, it is its duty to construct and maintain cattleguards across its roadway and grounds at the first points from the highway which will not interfere with the necessities and convenience of the public and the company.
“3. Whether this has been done is a question to be submitted to the jury in an action against the company for damages.”

This is the only Supreme Court case in our state which involves the alleged exceptions to the statute, and the cases referred to are reconciled upon the theory that the railroad company is bound to keep a lookout for stock on its right of way and to use due care for their protection, and whether or not the mules were trespassers does not justify the negligent operation of the train so as to injure or kill them.

In this case the railroad company must have known that its road was not fenced at the place where the mules entered the right of way. Whether the facts in the present case constitute an exception to the statute or not, the company was bound to use due care in view of the fact that its road was unfenced. The evidence therefore presented a question for the jury, the triers of the facts, to decide whether the facts were such as to justify such exceptions.

The municipal court judge took the place of the jury in this case. He was authorized to decide the questions of fact as well as the questions of law, and, there being no special findings of fact the trial court decided the entire case, and we are bound to follow the decision of the court upon the questions both of fact and law, if the evidence will justify such finding. We think there was enough evidence to justify the finding of the municipal court. We are therefore of the opinion that such judgment must be affirmed.

Judgment affirmed.

K/unkle, P. J., and Hornbeck, J., concur.  