Opinion by
Beaver, J.,Assuming that this case was to be submitted to the jury it was well tried. The charge of the court in regard to the law of the case is, in the main, clear and satisfactory. The appellant submits four assignments of error for our consideration.
The third cannot be sustained. The refusal of the trial judge to affirm the defendant’s first point, which was as follows: “ The plaintiff’s cows were trespassers upon the railroad of the defendant and, therefore, the plaintiff cannot recover in this action,” was correct. If the defendant contributed in any way, permissively or actively, to the filling up of the line ditch which separated the railroad of the defendant from the pasture lands of the plaintiff, by which the plaintiff’s cows were enabled to cross to the defendant’s railroad, they could not properly be said to be trespassers, even although the defendant, under the circum- ' stances, might not be liable in tort for their injury or killing. There was some evidence in the case which justified the inference that the ditch referred to was filled to a greater or less extent by the material which accumulated in it from the railroad. The court was, therefore, as we view the case, justified in declining to affirm the defendant’s first point.
The first, second and fourth assignments of error are sustained. They practically embrace but a single point. The court properly charged the jury: “ If you find that the railroad wilfully, not accidentally, but wilfully and recklessly put this material into the ditch and thus made it a place of passage and that this plaintiff did not know and could not have known it by proper diligence — if you find these facts to be true, then and then only can you find for the plaintiff.” The error consists in allowing the jury to find as a fact what nowhere appears in the evidence. The court recognizes the necessity, under the peculiar circumstances of this case, of some active participation by the railway in filling the ditch in such a way as to enable the cattle of the plaintiff — the appellee here — to cross from his pasture land to the railroad’s right of way. Further than that the trial judge properly characterized such active participation as “reckless, wilful and wanton,” in order to justify recovery. The testimony of both plaintiff and defendant negatives any active participation of the railroad in depositing waste material, such as old ties, ashes, etc., in the ditch. They were found *586there it is true, after the several accidents to the plaintiff’s cattle, but there is an utter absence of evidence tending to show that the defendant, by its servants, in any way actively participated in or wantonly, wilfully and recklessly contributed to placing them there. We have read the evidence with care and can find nothing which justifies the submission of such a fact for the finding of the jury. But a single witness, Hemphill, a trainman in the employ of the defendant, testifies to any active participation in placing ties in the ditch; but he says that, after one of the accidents referred to, the ties were placed there for the purpose of enabling the employees of the railroad to rescue the animal which had been injured. These were new ties and did not constitute any part of the accumulation of débris in the ditch of which the plaintiff complains and which he characterized in his testimony as “ old ties and ashes and one thing and another in the ditch.” The main facts of this case are admitted by both parties. This was a line ditch, taking the place of a line fence. Both parties recognized their obligation to keep it clean. The testimony shows that, when the defendant was notified of any obstructions in the ditch, they were promptly removed and that the plaintiff each fall cleared the ditch of any obstructions which he might find there. Both parties seemed to be desirous of discharging their duty in this respect. The mere failure to discharge this duty or the permissive accumulation of offal from the railroad in the ditch was not such reckless, wilful and wanton conduct as would justify a recovery in this case. There being no evidence of such conduct, it was error to submit the question in that form to the jury; and, in the absence of such evidence, the defendant’s second point, “ Under all the evidence in the case, the verdict of the jury should be for the defendant,” should have been affirmed. This leaves nothing for a jury to determine and the judgment is, therefore, reversed.