
    Davis, Appellee, v. Baltimore & Ohio Rd. Co., Appellant.
    (Decided November 2, 1938.)
    
      
      Messrs. Young & Young, for appellee.
    
      Messrs. Maple S Maple, for appellant.
   By the Court.

An examination of this record discloses that there is abundant evidence that the appellant, the Baltimore & Ohio Railroad Company, failed to perform the statutory duty to maintain a' fence sufficient to turn stock, imposed upon it by Section 8913, General Code of Ohio.

While, by Section 8858, General Code, the appellant was obliged to construct a crossing for the convenience of the abutting landowner, that did not relieve it from the duty of constructing and maintaining a fence sufficient to turn stock. It imposed upon the railroad company the additional duty of providing some means, by gate or otherwise, whereby the farmer could pass through the fence and adequately close the passageway behind him. This it failed to do. The witness testified that “when they built the new fence they took the old boards and made the gate and when that rotted away, I put a wire across the opening.”

There is no evidence in the record that an adequate gate had been furnished or maintained at this crossing where appellee’s horse got onto the appellant’s right of way. This failure to comply with its statutory duty continued to the time of this incident, and was the proximate cause of the appellee’s damage.

This being the situation shown by the record, any technical error that might appear would not be prejudicial.

For these reasons, the judgment is affirmed.

Judgment affirmed.

Ross, P. J., Hamilton and Matthews, JJ., concur.  