The judgment under review should be affirmed substantially for the reasons stated in the opinion of the Supreme Court. We deem it proper to add, however, that the undisputed evidence in the case indicates that the crossing in question was a private crossing connecting two portions of a tract of land which had been separated by the right of way of the defendant railroad company, and that, while the Supreme Court correctly relied upon section 26 of the Railroad act of 1903 (Comp. Stat., p. 4231), the opinion fails to quote a clause in that section which we deem particularly applicable to the case at bar, and which reads as follows:
"And also where said railroad shall intersect any farm or land of any individual, to provide and keep in repair suitable and convenient wagon-ways over, under and across said railroad, and to construct and maintain suitable and proper cattle guards at all road crossings."
This is a clause that seems to us particularly applicable to the physical situation exhibited by the evidence, and pursuant to which it was the duty of the railroad company to keep the particular crossing in repair. In all other respects the opinion of the Supreme Court is satisfactory and needs no further comment.
For affirmance — THE CHANCELLOR, CHIEF JUSTICE, TRENCHARD, PARKER, MINTURN, CAMPBELL, LLOYD, WHITE, GARDNER, VAN BUSKIRK, CLARK, JJ. 11.
For reversal — None. *Page 189