By the Qourt,
Whitox, C. J.It appears from the testimony returned with the bill- of exceptions, that the parties to this suit and their neighbors, were engaged in repairing a highway ; that it became necessary to cut trees, with which to construct a causeway, and that while the plaintiffs in error were felling trees to be used in its construction, the defendant in error was hauling with his cattle those which had been cut, to the place where they were to be used.
While the'parties were thus engaged, a tree which . the plaintiffs in error were chopping, fell upon the cattle of the defendant in error, killing one, and greatly injuring another. A suit to recover the damage was brought by the defendant in error before a justice of the peace, and taken, to the -county court for Jefferson county by ' appeal, where the defendant in *222error recovered a judgment. The plaintiffs in error to reverse the judgment for errors committed by the judge at the trial. The errors principally relied upon, are the refusal of the judge to give certain instructions to the jury, which were asked for by the plaintiffs in error.
The first instruction asked for is as follows : “That they (the jury) must believe from the evidence, that the injury complained of was either the result of gross negligence on the part of the defendants, or they must find for the defendants, unless they also find that the defendants committed the offence which caused the injury, with the intention to commit a wrong.” The second one is as follows : “ that if the jury believe from the evidence that there was no gross negligence or carelessness on the part of the defendants, then and in that case, they must find for the defendants.”
The fourth instruction is as follows : “that if the jury believe from the evidence, that the plaintiff and defendants were both employed in performing separate duties and service, tending to the same end, and that the plaintiff, while performing his own appropriate aud peculiar duty, was injured by the negligent act of the defendants in respect to their branch of the service, the plaintiff cannot recover, unless the jury also believe from the evidence that the defendants wilfully committed the injury.”
The judge refused to give the instructions asked, but gave the first and second, with the omission of the word “ gross,” and added a qualification to the third, which need not be noted.
We think the judge erred in refusing to give the first and second instructions applied for. As the *223matter was left to tlie jury, they would infer that any degree of negligence, however slight, would "be sufficient to charge the defendants, and we are cd’ opinion that they should only be held liable for the consequences of the want of ordinary care. The defendants were engaged in a lawful employment, and we see nothing in the circumstances of the case to justify the holding of them liable, if they .used the same degree of care which men commonly do, when engaged in such employment under similar circumstances. In all cases, what constitutes ordinary care; must he determined with reference to the nature of the act done, and the circumstances attending it-Felling large trees, without giving timely notice of their fall, when others beside those' engaged in the act of cutting them, are near enough to be injured by it, may be gross negligence, sueh as would make those guilty of it, liable for the damage, if injury should result; but the jury should not be charged, that any degree of negligence, however slight, of those lawfully engaged in such business, is sufficient to charge them. ’ '
The judgment must be reversed, and a new trial ordered.