This action was instituted by plaintiff to recover damages accruing to plaintiff by reason of defendant’s engine and cars killing two of his horses and wounding another. The judgment in the trial court was for plaintiff.
There was much evidence heard as- to the sufficiency, of defendant’s fences, gates 'and cattle guards. But it seems to be conceded that the animals got upon the track through and and over the cattle guards and the sole question relates to the question of whether they were sufficient, ordinarily to turn stock. Defendant’s road runs through the plaintiff’s farm. There was one guard on the north side and one on the south side of the farm. The horses entered the right of way (probably from the public road) through the north guard and wandered thence down along the track over defendant’s right of way to the south guard where they passed out of the farm by going over the south guard and thence on south on the right of way between defendant’s fences about one quarter of a mile to where itihey were struck.
The evidence should have been confined to the sufficiency of the cattle guards, whereas evidence was introduced tending to show a defective gate and fence and an instruction, number (4, was given for plaintiff on a hypothesis that the animals goit upon the track through a defective fence. And *53yet there was an instruction for defendant which told the jury that there was no evidence tending to show an entrance through defendant’s fence. To add to the confusion which must have resulted from this conflict instruction number 4, for plaintiff contained a declaration that it was not necessary to plaintiff’s recovery for him to show the exact place where the horses got upon the right of way. This may be true, but under the evidence in this case and the instructions referred to this only tended the more to confuse the situation. Here the animals entered the right of way over a cattle guard and thence continued over the right of way through another guard to the point of collision, and the sufficiency of these guards is the question for determination. With the foregoing exceptions the action of the court on the instructions given and refused appears to have been proper.
The judgment is reversed and cause remanded.
All concur.