Under the act of March 25, 1859 (1 S. & C. 331), where a railroad fence forms the boundary of an inclosed field, it is the duty of the land-owner, as well as the railroad company, to maintain the fence in proper order: Railroad Co. v. Sloan, 27 O. S. 341.

If the land-owner knows that such fence is insufficient, and, omitting to repair it, turns his stock into a field which it incloses, and by reason of such insufficiency the stock is killed upon the track without fault of the company in running its trains, the land-owner is guilty of such contributory negligence as will prevent a recovery by him: Ib. Followed in Railway Co. v. Infirmary, 32 0.8.566.

The act of April 18, 1874, applied to all railroads then in operation and unfenced, and extended the time within which such railroads were required to be fenced to a period of six months after the date of the passage of the act. And until the time thus extended had elapsed, no liability for an injury to trespassing animals arose from the failure to construct such fence: Railroad v. McElroy, 35 0. S. 147.

In an action against a railroad company to recover damages for killing live stock, the plaintiff must prove affirmatively that want of ordinary care on the part of the company or its employes caused the injury: Railroad Co. v. McMillan, 37 O. S. 554.

Such inference does not arise from the mere fact that the animal was killed: Ib.

A railroad company is not entitled to compensation for making or maintaining such cattleguards, though highway was constructed after railroad: Railway Co. v. Sharpe, 38 O. S 150.

Company is liable, notwithstanding the owner of the live stock had knowledge of the insufficiency of the fence, and company had no notice of its condition: Railway Co. v. Smith, 38 0. S. 410.

The statute applies to the case of a private road which crosses a railroad track: Railroad Co. v. Cunnington, 39 O. S. 327.

Owner may recover, provided the animals were at large without his fault, and he has used that reasonable care and precaution in restraining them, which a prudent and cautious man would, who had knowledge of their unruly character: Railroad Co. v. Howard, 40 O. S. 6.

Right to recover, how affected by 4202: Ib. 8.

A landowner agreed with a railroad company to keep a line of fence in repair. The company, in order to rebuild a bridge, removed a portion of the fence and replaced it by a fence of a different character. The latter was accepted by the landowner as an inclosing fence to his fields: Held, that it becar e the duty of the landowner to keep the same in repair, and he is without remedy where his stock is killed by neglect to make such repairs, unless the killing was caused by negligence in running the train: Railway Co. v. Heiskell, 38 O. S. 666.

The statute may be construed as allowing exceptions required by public necessity and convenient and proper use of station-yard: Railroad Co. v. Newbrander, 40 O. S. 15.

When relieved from duty to construct cattle-guards at highway, company must construct at first points from highway that will not interfere with the necessities and convenience of the public and company. Ib. 15.

Plaintiff is not guilty of contributory negligence in pasturing his hogs in a field, although he knew the fence was out of repair: Railroad Co. v. Scudder, 40 O. S. 173.

The obligation to construct and keep in repair fences to turn stock, is not limited to the protection and benefit of the owners and occupiers of abutting lands: Railway Co. v. Allen, 40 O. S. 206. 'This section is to be reasonably construed: and where damage results from defects (occurring without the fault or neglect of the company) in an otherwise suflicient fence, there is no liability: Railroad Co. v. Schultz, 43 O. S. 270.

An action against a railroad company for injuries sustained by a domestic animal through the neglect of the company to fence the road, is barred in six years: Seymour v. Railway Co., 44 O. S. 13. Where a railroad company has for a long time permitted the public, including children, to travel and pass habitually over its road at a given point without objection or hindrance, it should, In the operation of its trains and management of its road, so long as it acquiesces in such use, be held to anticipate the continuance thereof, and is bound to exercise care, having due regard to such probable use, and proportioned to the probable danger to persons so using its road: Harriman v. Railway Co., 45 O. S. 11.

A subsequent purchaser without notice, actual or constructive, of an agreement between his grantor and the company, whereby the former was to build the necessary fences, may require the company to fence. Mere use and occupation of the right of way by the company, is not constructive notice: Railway v. Bosworth, 46 O. S. 81.

Generally, a person who is about to cross a railroad track must use his senses to ascertain whether a train is approaching the crossing, and if he fails to do so, and suffers injury in crossing the track, he is guilty of contributory negligence. Railway Co. v. Peters, 1 C. C. 34.

Abstractly, under some circumstances, a person is excused from using his senses to ascertain whether a train is approaching; but to render this rule applicable to any particular case, the facts and circumstances which excuse the plaintiff must be put in evidence: Ib.

Where there is contributory negligence, the plaintiff can not recover, although his negligence is slighter in degree than that of the defendants: Ib.

A person has no right to be on the track of a railroad where there is no public crossing, and a railroad is not liable for injury by its train to a person on its track where there is no public crossing unless the injury be the result of wanton, willful negligence on the part of its employes in charge of the train: Driscoll v. Railway Co., 1 C. C. 493.

SEC. 3325. [When land-owners may construct fence at company's expense.] If such company or person neglect or refuse to construct such fence, as provided in the preceding section, the owner of any land abutting on the line of the land of the railroad may construct the fence therein provided for, so far as his land abuts on the railroad lands; and when he has completed the same, he may present for payment, to the agent of the company for receiving and shipping freight at the station nearest to the tract of land so fenced, an itemized account of the expense thereof, including materials and labor; and if such company or person neglect or refuse, for thirty days, to pay such account, such landowner may recover the reasonable cost of such fence from the owner of the road, in any court having jurisdiction of the same. [71 v. 85, 21; S. & C. 333.]

Under the act of April 18, 1874 (71 v. 85), an action will not lie in favor of a landowner against a railroad company to recover the cost of building a fence along the line of its railroad, when the former owner of the land, for a consideration, released the right of way for the railroad over the lands, and agreed to build and keep up fences on both sides of the line of the road: Warner v. Railroad Co., 31 O. S. 265.

SEC. 3326. [Company to keep fence in repair.] When the fence is completed the company shall keep it in good repair; and if any such company or person permit any part of the fence on the line of its road to get out of repair so that it will not turn stock, the owner of the land abutting on the railroad lands where the fence is out of repair, may notify the agent of the company for receiving and shipping freight at the station on the road nearest to the place where the fence is out of repair, that a portion of the fence on the line of the road is out of repair, stating where, how, and the probable cost of repairing the same; and if such company or person fail, for twenty-four hours thereafter, to repair the fence so that it will turn stock, the owner of the land may furnish materials and repair the same, and present to such agent, for payment, an itemized account of the expense thereof, including materials and labor, and if the same be not paid within thirty days thereafter, such land-owner may recover from the owner of the road the reasonable expense of such repairs, before any court having jurisdiction thereof. [71 v. 85, 21.]

SEC. 3327. [When private crossings must be built.] A person owning fifteen or more acres of land in one body through which any such railroad passes, and which is so situate that he can not use a crossing in a public street, road, lane, or highway, in passing from his land on one side of the railroad to that on the other side without great inconvenience, the company or person operating the road shall, at the request of the landowner, within four months after such request, at the expense of such company or person, construct a good and sufficient private crossing across the railroad and the lands occupied by the company, between the two pieces of land of the landowner, to enable him to pass with a loaded team, and over which he shall have the privilege of passing at all times when such company or person is not using the railroad at the crossing, or so near thereto as to render crossing thereat dangerous. [71 v. 85, ? 1.]

SEC. 3328. [When land-owner may build it at company's expense.] If such company or person neglect, for four months after request by any such landowner for that purpose, to construct a good and sufficient private crossing as provided in the preceding section, such landowner may, after having given reasonable notice to the agent of the company for receiving and shipping freight at the station on the railroad nearest to the land where it is proposed to construct such private crossing, of the time when such landowner will proceed to construct such crossing, enter upon the lands of the company, at any point he may desire between the two pieces of his land, and construct a good and sufficient private crossing; and such company or person shall be liable to him for all the reasonable expense thereof, not exceeding the sum of fifty dollars, and he may recover

the same in an action against such company or person, before any court having jurisdiction thereof. [71 v. 85, 21.1

SEC. 3329. [When five preceding sections do not apply.] The provisions of the five preceding sections relating to fences and private crossings shall not apply to any case in which compensation for building a fence or a private crossing has been or may hereafter be taken into consideration, and estimated as a part of the consideration to be paid for the right of way, so far as the fence, or right to private crossing, has been or may be settled or paid for; nor shall said sections be held to affect, in any manner, any contract or agreement between any railroad company, or person having the control and management of a railroad, and the proprietors or occupants of lands adjoining, for the construction and maintenance of fences, cattle-guards, and railroad crossings. [71 v. 85, 1; 56 v. 62, 4; S. & C. 332.]

An unrecorded agreement between the company and a former owner, of which a purchaser has no notice, will not relieve the company from its obligation to build necessary fences: Bosworth v. Railway Co., 46 O. S. 81.

SEC. 3330. [When company may build fence at land-owner's expense.] Ifan owner of lands abutting on the line of the lands of a company, who is legally bound in any manner to build or repair the fence dividing his lands from the lands of the company, neglect or refuse to build or repair such fence within the time in which he is bound to build or repair the same, the company may build or repair such fence, and present an itemized account of the cost of labor and materials expended in such construction or repair, to the person bound to build or repair the fence, for payment; and if the same be not settled or paid within thirty days thereafter, the company may recover from such person the reasonable cost of such labor and materials, before any court having jurisdiction thereof. [71 v. 85, 1.]

SEC. 3331. [Penalties for not constructing and repairing fences, etc.] A company or person having the control and management of a railroad neglecting or refusing to construct fences, cattle-guards, or public crossings, or to keep the same in repair, as prescribed in section thirty-three hundred and twenty-four after thirty days' previous notice or request to do the same, made in writing by any person, shall forfeit and pay for each and every day such company or person so refuses or neglects, any sum not exceeding fifty dollars per day, to be recovered in a civil action, in the name of the state, for the use of the county in which suit is brought. [56 v. 62, 25; S. & C. 333.]

SEC. 3332. [Right of landowner to use culvert, etc., for cattle-way.] Any owner of land through which a railroad is constructed, and upon which there is a culvert, water-way, or opening through the embankment of the railroad, of sufficient height for such purpose, may use such culvert, water-way, or opening, for the purpose of a stock or cattle-way, under the track of the road, so as to permit stock to pass and re-pass; but the landowner shall build and maintain all necessary fences on both sides of said opening, and shall not, by use, or otherwise, permit the foundations of any structures about such opening to be injured or interfered with.

SEC. 3333. [Railroad crossings: how to be made; crossing of trains: how to be regulated; when trains may cross without stopping.] When the tracks of two railroads cross each other, or in any way connect at a common grade, the crossings shall be made and kept in repair, and watchmen maintained thereat, at the joint expense of the companies owning the tracks; all trains or engines passing over such tracks shall come to a full stop not nearer than two hundred feet, nor further than eight hundred feet from the crossing, and shall not cross until signaled so to do by the watchman, nor until the way is clear, and when two passenger or freight trains approach the crossing at the same time, the train on the road first built shall have precedence if the tracks are both main tracks over which all passengers and freights on the road are transported; but if only one track is such main track, and the other is a side or depot track, the train on the main track shall take precedence; and if one of the trains is a passenger train and

the other a freight train, the former shall take precedence, and regular trains on time shall take precedence over trains of the same grade not on time, and engines with cars attached, not on time shall take precedence of engines without cars attached not on time; provided, however, and in case such two railroads crossing each other, or in any way connecting at a common grade, shall by any works or fixtures to be erected by them render it safe to pass over said crossing without stopping, and such works and fixtures shall first be approved by the commissioner of railroads and telegraphs, and the plan of said works and fixtures for such crossing, designating the plan of crossing shall have been filed with such commissioner of railroads and telegraphs, then, and in that case, the provisions of said section thirty-three hundred and thirty-three, and the provisions of sections thirty-three hundred and thirty-four, thirty-three hundred and thirty-five, shall not apply; but if such commissioner of railroads and telegraphs shall disapprove such plan, or fail to approve the same within twenty days from the filing thereof, such companies may apply in the county where said crossing is situated, to the court of common pleas, or to a judge thereof in vacation, in the manner provided in section thirty-three hundred and seventeen, and the same proceedings shall be had, and with the same effect as provided in said last named section. [1882, April 14: 79 v. 95; Rev. Stat. 1880; 57 v. 106,

21; (S. & C. 372a).]

The state has reserved to itself the right to enact police laws necessary to secure the lives and property of its citizens, and among the powers thus reserved, and which must inhere in the state, is that of prescribing reasonable regulations for the government of railroad corporations in regard to the manner in which they shall exercise their corporate franchises in running their trains, so as to avoid danger to the lives and property of its citizens; and the act of March 24, 1860 (57 v. 106), is a valid exercise of this power to prevent collisions at railroad crossings: Railway Co. v. Railway Co., 30 O. 8. 604.

A railroad corporation accepts its charter, and maintains and operates corporate property as a railroad, subject to this inherent power in the state to adopt such regulations whenever the public exigencies and the safety of the community may, in the judgment of the law-making power, require them, and subject also to the power of the state to authorize the construction of other railroads across its track whenever the public welfare may require; and neither the priority of one charter over the other, nor the prior location or construction of a railroad thereunder, affects this right; and the right of one railroad corporation to cross the track of another, in constructing and operating its road, is derived by grant of its franchise so to do from the state, and not by purchase or appropriation from the road first located and constructed; and the latter has no vested exclusive right to such crossing for its use, as against the right of the public to a crossing: Ib.

The right of a railroad corporation to hold land, is not an unqualified right, but is limited to the uses and purposes of the corporation, and the land is to be held for the purposes of the grant for public uses; and the title which it has in its right of way is a qualified title, subject to the equal right of another railroad corporation to cross the same with its track, provided compensation be made, as required in the case of individuals, for the property or the interest therein appropriated: Ib.

The act of March 24, 1860, supra, imposes on both companies the expense of making and keeping up such crossing as therein required, without regard to the date of their respective charters, or the location or construction of their respective roads: Ib.

In a proceeding under the statute by one corporation, to appropriate a strip of land across the track of another, to be used in common by each as a railroad crossing at a common grade, the owner of such track is entitled to compensation for the property or interest therein actually appropriated, and for such consequential damages, not provided for by the act of March 24, 1860, supra, as are the direct and proximate consequences of such appropriation, but has no right to recover, as consequential damages, the additional expense necessary in operating its road caused by complying with the requirements of the act: Ib.

A railroad company which has the possession and control of a railroad in this state, and is managing and operating the same as the lessee thereof, is one "owning the tracks" of such railroad within the meaning of this section: B. & O. R. R. Co. v. Walker, 45 O. S. 577.

The necessity for keeping the crossing in repair, and maintaining watchmen thereat, grows out of the use and operation of the railroads crossing each other at a common grade, and the benefits thereof accrue to the companies operating the roads; and as the lessee company receives the benefits, it takes them subject to the burden of their expense: Ib.

The burden of keeping in repair the crossing, and maintaining watchmen thereat, is common to both companies: and where either performs the whole duty and pays the whole expense, it is entitled to recover from the other its equal proportion thereof: Ib.

SEC. 3334. [Rules to be made and published.] The managing agent or superintendent of every railroad shall establish, and publish to all the employes on the road, such rules and regulations as shall, in all cases, secure strict compliance with the provisions of the foregoing section, and shall republish such rules and regulations on each time table or card issued to the employes on the road; if such managing agent or superintendent fail or neglect to establish and publish such rules and regulations, or to republish the same on each time table or card issued to the employes on the road, he shall be personally liable, for every such neglect or refusal, to a penalty of one hundred dollars, to be recovered, together with costs, in an action against him in favor of the state, to be brought in the court of common pleas of any county wherein any such crossing is; and such agent or superintendent, and the company of which he is agent or superintendent, shall also be liable in damages to any person or company injured in person or property by an accident arising from such failure or neglect. [57 v. 106, 22; S. & C. 372a]

SEC. 3335. [Penalties for violations of section thirty-three hundred and thirtythree.] Every engineer or person in charge of an engine who willfully fails to comply with the provisions of section thirty-three hundred and thirty-three or fails to bring the engine of which he is in charge, with the train, if any, thereto attached, to a full stop at least two hundred feet before arriving at any railroad crossing or connection, or crosses the same before signaled so to do by the watchman, or before the way is clear, shall be personally liable to any person injured by reason of such failure to a penalty of one hundred dollars to be recovered by civil action, at the suit of the state, in the court of common pleas of any county wherein such crossing or connection is; and the company in whose employ such engineer or person in charge of an engine is, as well as the person himself, shall be liable in damages to any person or company injured in person or property by such neglect or act of such engineer or person. [71 v. 50, 2 3.]

SEC. 3336. [Signals at railroad crossings.] Every company shall have attached to each locomotive engine passing upon its road, a bell of the ordinary size in use on such engines, and a steam whistle; and the engineer or person in charge of an engine in motion, and approaching a turnpike, highway, or town road crossing, upon the same level therewith, and in like manner when the road crosses any other traveled place, by bridge or otherwise, shall sound such whistle at a distance of at least eighty and not further than one hundred rods from the place of such crossing; and ring such bell continuously until the engine passes such road crossing; but the provisions of this section shall not interfere with the proper observance of any ordinance passed by any city or village council regulating the management of railroad locomotives and steam whistles thereon, within the limits of such city or village. [1886, May 13: 83 v. 153; Rev. Stat. 1880; 69 v. 49, 1.]

Whether these signals are for the protection of travelers only, or extend to persons working on the track, quare: Dick v. Railroad Co., 38 O. S. 396.

Cited in Ravenna v. Railroad Co., 45 O. S 125. See note to same case under 1692, subdivision 29. As to liability of railroad companies for injuries caused by negligence of gatemen at dangerous crossings, see Railway Co. v. Schneider, 45 O. S. 678.

SEC. 3337. [Penalties for violation of preceding section.] Every engineer or person in charge of any such engine who fails to comply with the provisions of the preceding section shall be personally liable to a penalty of not less than fifty nor more than one hundred dollars, to be recovered by civil action, at the suit of the state, in the court of common pleas of any county wherein any such crossing is; and the company in whose employ such engineer or person in charge of an engine is, as well as the person himself, shall be liable in damages to any person or company injured in person or property by such neglect or act of such engineer or person. [69 v. 49, % 2.]

The failure to give signals must have been the proximate cause of the accident before recovery can be had: Pennsylvania Co. v. Rathgeb, 32 O. S. 72.