Cobb, J.
Sec. 1 of the act of 1867, entitled “An act to define the duties and liabilities of railroad companies,” provides that: “ Every railroad corporation * * * shall erect and thereafter maintain fences on the sides of their said railroad * * * suitably and amply sufficient to prevent cattle, horses, sheep, and hogs from getting on the said railroad, except at the crossings of public roads and highways, and within the limits of towns, cities, or villages, * * * and so long as such fences * * * shall not be made after the time hereinbefore prescribed for making the same, shall have elapsed, and when such fences * * * or any part thereof are not in sufficiently good repair to ac[480]*480complish the object for which the same, as herein prescribed, was intended, such railroad corporation and its agents shall be liable for any and all damages which shall. be done by the agente, engines, or trains of any such corporation, or by the locomotives, engines, or trains of any other corporation permitted and running over or upon their said railroad, to any cattle, horses, sheep, or hogs thereon; and when such fences and guards shall have been fully and duly made, and shall have been kept in good and sufficient repair, such railroad corporation shall not be liable for any such damages unless negligently and willfully done.” Comp. Stat., 381.
The testimony shows that the railroad of the plaintiff in error runs through the farm of the defendant in error dividing it into two nearly equal parts east and west. The pasture of the defendant in .error is on the south side of the railroad. That some twelve or thirteen years before the killing of the stock in question the railroad company fenced the line of road at this place with a good fence consisting of posts set eight feet apart and three boards sixteen feet in length. This fence on the south side of the railroad constituted the - north fence of the pasture in which the defendant in error kept his cattle in the day time, and he had fenced off a corral of about three acres, for one line of which fence he used the railroad fence. The. evening before the accident the defendant in error put his cattle, consisting of twenty-three head, into this corral, as was his custom, and looked along the railroad part of the fence, and it was apparently all right. In the morning the railroad fence between the cattle and the railroad track was broken, i. e., the middle board broken off, three of the cattle had passed through and on to the railroad track, where by a passing train two of them were killed and one crippled.
"We think that the case turns on the question, did the railroad company at this point “erect and thereafter main[481]*481tain fences * * * suitable and amply sufficient to prevent cattle * * * from getting-on tbe said railroad? ” We will not say that tbe fact that the fence erected by the raih-oad company did not on this occasion prevent cattle from getting on the railroad track is a conclusive answer to this question. But in addition to the admitted fact of the said fence having proved as against these cattle at this time unsuitable and insufficient, there was testimony on both sides, and we think that by the instructions of the court the point was fairly submitted to the jury.
The court instructed the jury as follows: “1. The statute applicable to this case requires every railroad corporation to erect and maintain fences on the sides of their railroad suitable and amply sufficient to prevent cattle from getting on the track of said railroad.
“ 2. If you find that in this case the fence on the north side of what the plaintiff calls his corral was of such a character as described in the last paragraph, then you should find for the defendant.
“3. But if you find that the stock in question were killed by engines or cars of the defendant, and that said stock came on said track by reason of any imperfection in, or insufficiency of said fence, then the plaintiff would be entitled to recover.”
The point upon which there was any difference in the testimony was as to the condition which the fence was in at the time of the killing. Plaintiff, who was sworn in his own behalf, testified as follows upon that point on his cross examination:
Q,. Do you know what condition the fence was in?
A. Yes. At the time I closed it at night, it was all right. I looked along the railroad, and the fence was all up that very evening I put the cattle in.
On his re-direct examination, he said: “There was three boards up. It was all up. It was nailed on, and there [482]*482was no boards broken down. I examined the condition of the board that was broken down. It was rotten. There was no posts broken down or other injuries to the fence at that place. Along the line they were pretty near all burned off. A good many only have one inch or two inches to hold the post burned off by prairie fires. The cattle had broken through that fence a good many times. I notified the agent of the company, Mr. Neveman, in April. In April it was in condition to keep cattle that is in the pasture. I didn’t notify the agent about the corral fence, but the fence along the pasture. Didn’t notify any of the agents about the corral fence. It was a middling good fence. It was all rotten. They never broke through the corral fence before.”
George Gudhardt, sworn on the part of the plaintiff, stated as follows: “My business is farming. Live three-quarters of a mile from Papillion, near Mr. Schwenck’s farm. I pass his pasture two or three times a week. Lived there thirteen years.”
Q. "What was the condition of the plaintiff’s corral fence on the 18th July, 1881 ?
A. I think the fence is not so they can keep cattle in. There is a good deal- of posts and boards burned off. I have been there thirteen years, and that fence has been there. The posts and boards are rotten. It is not a safe fence to keep cattle. Have measured the fence. It is forty-six inches. The lowest place from the bottom board is twenty-three inches.
On the contrary Edward Nolan, sworn on the part of the defense, testified as 'follows: “My business is section foreman, and was on the 18th July last * * * I know where Mr. Schwenck’s corral was, it was alongside of the track. Track was right close to the corral. I found the center board of the three boards was broken right close to the post. It was broken off from the post and laid on the ground. The other end of the board was fastened to the [483]*483post. Only one board broken. My business in respect to the fence was to see that it was all right and to keep it up. It was in good condition, a three board fence. I always paid attention to it and kept it in good repair. I knew that it was a corral. The cattle never broke out of that particular place, but out of the pasture. I notified Mr. Schwenek of that many times. The corral was about forty rods from where he had his cross fence. The fence was constructed of good sound boards, six inch boards, sixteen feet long. The posts were eight feet apart. There were no posts burned in that forty rods of fence. There might have been further along.”
On the cross examination he said: “I have six miles of fence to look after. I am prepared to state that every board in that six miles of fence is good. I know them every single board. That is my business to examine them. They were sound last July. Whether a board will rot in eight months will depend on how sound they were. Do not take them off every eight months. I don’t believe they are rotten to-day.
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Cobb, J.
Sec. 1 of the act of 1867, entitled “An act to define the duties and liabilities of railroad companies,” provides that: “ Every railroad corporation * * * shall erect and thereafter maintain fences on the sides of their said railroad * * * suitably and amply sufficient to prevent cattle, horses, sheep, and hogs from getting on the said railroad, except at the crossings of public roads and highways, and within the limits of towns, cities, or villages, * * * and so long as such fences * * * shall not be made after the time hereinbefore prescribed for making the same, shall have elapsed, and when such fences * * * or any part thereof are not in sufficiently good repair to ac[480]*480complish the object for which the same, as herein prescribed, was intended, such railroad corporation and its agents shall be liable for any and all damages which shall. be done by the agente, engines, or trains of any such corporation, or by the locomotives, engines, or trains of any other corporation permitted and running over or upon their said railroad, to any cattle, horses, sheep, or hogs thereon; and when such fences and guards shall have been fully and duly made, and shall have been kept in good and sufficient repair, such railroad corporation shall not be liable for any such damages unless negligently and willfully done.” Comp. Stat., 381.
The testimony shows that the railroad of the plaintiff in error runs through the farm of the defendant in error dividing it into two nearly equal parts east and west. The pasture of the defendant in .error is on the south side of the railroad. That some twelve or thirteen years before the killing of the stock in question the railroad company fenced the line of road at this place with a good fence consisting of posts set eight feet apart and three boards sixteen feet in length. This fence on the south side of the railroad constituted the - north fence of the pasture in which the defendant in error kept his cattle in the day time, and he had fenced off a corral of about three acres, for one line of which fence he used the railroad fence. The. evening before the accident the defendant in error put his cattle, consisting of twenty-three head, into this corral, as was his custom, and looked along the railroad part of the fence, and it was apparently all right. In the morning the railroad fence between the cattle and the railroad track was broken, i. e., the middle board broken off, three of the cattle had passed through and on to the railroad track, where by a passing train two of them were killed and one crippled.
"We think that the case turns on the question, did the railroad company at this point “erect and thereafter main[481]*481tain fences * * * suitable and amply sufficient to prevent cattle * * * from getting-on tbe said railroad? ” We will not say that tbe fact that the fence erected by the raih-oad company did not on this occasion prevent cattle from getting on the railroad track is a conclusive answer to this question. But in addition to the admitted fact of the said fence having proved as against these cattle at this time unsuitable and insufficient, there was testimony on both sides, and we think that by the instructions of the court the point was fairly submitted to the jury.
The court instructed the jury as follows: “1. The statute applicable to this case requires every railroad corporation to erect and maintain fences on the sides of their railroad suitable and amply sufficient to prevent cattle from getting on the track of said railroad.
“ 2. If you find that in this case the fence on the north side of what the plaintiff calls his corral was of such a character as described in the last paragraph, then you should find for the defendant.
“3. But if you find that the stock in question were killed by engines or cars of the defendant, and that said stock came on said track by reason of any imperfection in, or insufficiency of said fence, then the plaintiff would be entitled to recover.”
The point upon which there was any difference in the testimony was as to the condition which the fence was in at the time of the killing. Plaintiff, who was sworn in his own behalf, testified as follows upon that point on his cross examination:
Q,. Do you know what condition the fence was in?
A. Yes. At the time I closed it at night, it was all right. I looked along the railroad, and the fence was all up that very evening I put the cattle in.
On his re-direct examination, he said: “There was three boards up. It was all up. It was nailed on, and there [482]*482was no boards broken down. I examined the condition of the board that was broken down. It was rotten. There was no posts broken down or other injuries to the fence at that place. Along the line they were pretty near all burned off. A good many only have one inch or two inches to hold the post burned off by prairie fires. The cattle had broken through that fence a good many times. I notified the agent of the company, Mr. Neveman, in April. In April it was in condition to keep cattle that is in the pasture. I didn’t notify the agent about the corral fence, but the fence along the pasture. Didn’t notify any of the agents about the corral fence. It was a middling good fence. It was all rotten. They never broke through the corral fence before.”
George Gudhardt, sworn on the part of the plaintiff, stated as follows: “My business is farming. Live three-quarters of a mile from Papillion, near Mr. Schwenck’s farm. I pass his pasture two or three times a week. Lived there thirteen years.”
Q. "What was the condition of the plaintiff’s corral fence on the 18th July, 1881 ?
A. I think the fence is not so they can keep cattle in. There is a good deal- of posts and boards burned off. I have been there thirteen years, and that fence has been there. The posts and boards are rotten. It is not a safe fence to keep cattle. Have measured the fence. It is forty-six inches. The lowest place from the bottom board is twenty-three inches.
On the contrary Edward Nolan, sworn on the part of the defense, testified as 'follows: “My business is section foreman, and was on the 18th July last * * * I know where Mr. Schwenck’s corral was, it was alongside of the track. Track was right close to the corral. I found the center board of the three boards was broken right close to the post. It was broken off from the post and laid on the ground. The other end of the board was fastened to the [483]*483post. Only one board broken. My business in respect to the fence was to see that it was all right and to keep it up. It was in good condition, a three board fence. I always paid attention to it and kept it in good repair. I knew that it was a corral. The cattle never broke out of that particular place, but out of the pasture. I notified Mr. Schwenek of that many times. The corral was about forty rods from where he had his cross fence. The fence was constructed of good sound boards, six inch boards, sixteen feet long. The posts were eight feet apart. There were no posts burned in that forty rods of fence. There might have been further along.”
On the cross examination he said: “I have six miles of fence to look after. I am prepared to state that every board in that six miles of fence is good. I know them every single board. That is my business to examine them. They were sound last July. Whether a board will rot in eight months will depend on how sound they were. Do not take them off every eight months. I don’t believe they are rotten to-day. I wouldn’t believe it if a party should say so. Am in the employ of the company, and would lose my position if the fences were not properly kept up.”
Here is a pretty sharp conflict of testimony, and thus a case is presented peculiarly within the province of a jury.
But upon the trial the defendant requested the court to instruct the jury as follows: “The law requires a railroad to fence its line of road against cattle running at large and against no other. It also requires the plaintiff to enclose his cattle, and not permit them to run at large in the night time. If you find that the plaintiff’s cattle escaped from his enclosure and strayed upon the track of the defendant, and were killed in the night time, the defendant will not be liable,” which was refused.
There was no error in the refusal to give this instruction upon the evidence in the case. It is true the law provides that: “No cattle * * * shall run at large during the [484]*484night time between sunset and sunrise * * * and the owner or owners of any such animal shall be liable in an action for damages done during the night time.” In so far as these cattle were running at large in the night time, it was through no fault or want of care and diligence on the part of the defendant in error, but through the fact that the fence erected by plaintiff in' error, and which it was required by statute to keep in sufficiently good repair to accomplish the objects for which the same as by statute required were intended, was not so kept. Let the case be supposed that these cattle, after escaping through the fence, instead of getting on the railroad track and being killed, had gone to the corn crib or hay stacks of the plaintiff in error, and there committed damage, and an action been brought by the plaintiff in error against the defendant in error for such damage, can there be any doubt that an answer and proof, that said cattle had escaped and become at large at the time of committing such damage through the fault or illegal act of the plaintiff in such action, would be a complete defense?
It is not claimed, nor can it be, that the defendant in error was guilty of any contributory negligence. So far as it appears to the contrary by proof, citation, or suggestion, he had the right to treat the railroad fence as a division fence, with the duty of keeping it in repair imposed solely upon the railroad company by statute. He therefore had a right to use his enclosure, one string of the fence of which was the railroad fence, for all legitimate purposes of agriculture, of which the raising, breeding, and keeping of cattle constitute an important part in this state. If the defendant in error put an improper number of cattle into his inclosure for its size, so that by reason of its crowded condition a stronger fence was required to keep the cattle in than is required for an ordinary pasture, that might possibly be considered contributory negligence. But neither by proof nor instruction prayed is that point presented in this case.
[485]*485The case at bar differs from nearly or quite all of the cases cited by counsel for plaintiff in error in their brief in this, that in all of them the animals have either been permitted purposely, by those having charge of them, to be and run at large, contrary to statute or regulations, or have escaped from the control of their keepers through causes for which the railroad company was in no wise responsible. This may be said of the case of Central Branch Railroad Co. v. Lea, 20 Kan., 353, and most of the numerous cases there cited, as well as the Wisconsin cases.
As to the question suggested by the instruction prayed for by plaintiff in error, and stated in the second paragraph of its brief, that a fence, although “ suitable and sufficient to prevent cattle * * * from getting on the railroad ” in the day time, it might not be sufficient for that purpose in the night, if it be true that it requires a stronger fence to guard against the depredations of domestic animals in the night than in the day time, it was a question for the jury, and had there been testimony before them to warrant it, we must presume that it would have had its proper weight in shaping their verdict.
The judgment of the district court is affirmed.
Judgment affirmed.