This is an action brought by Wendt against the railroad company to recover the value of a cow belonging to him, which was killed by a locomotive of the defendant, while making a running switch near Boyd’s packing house, in the city of Omaha. The petition is framed upon the theory that there can be no recovery in such case except for gross negligence on the part of the railroad'company, and the rulings of the court and instructions given were all based on that view of the law. A verdict for $33.50 was returned in 'favor of Wendt, upon which judgment was rendered. The company bring the cause into this court by petition in error.
That-there are-sufficient errors in the record to justify a reversal of the ease on behalf of Wendt, had he laid the proper foundations for a review, there is no doubt. But he makes no complaint. As the statute does not require a railroad company to fence its tracks within the limits of a city or village, it is not responsible for injury to domestic animals caused by its trains within such corporate limits, unless it has beenguiltyof negligence. One object of a railroad is the transportation of persons and property at a high rate of speed by means of engines- and cars, and this must necessarily be dangerous to cattle going upon the track. To lessen this danger, all railroads 'in this state which have been in operation six months, are required to fence their track, except within the corporate limits of a city or village, and the failure *82to do so will make them liable in any event for stock injured on that part of the road required to be fenced, while at crossings and such portions of the track as are within the limits of a city or village, they are liable for want of ordinary care.
It may be conceded that a railway company has a right to regulate the management and conduct of its business with reference to the security of persons and property in its charge and the meeting of reasonable appointments in regard to them, and that such company need not presume that cattle will be permitted to stray upon the track. It will also be conceded that .the company has a right to the exclusive use of its track, precisely the same as the owner of a farm has to its free use and enjoyment. But a railroad must necessarily be crossed at short intervals by public roads, upon which the public have a right to travel, and within the limits of ■a city is necessarily crossed by many public streets, and as the business of running cars is particularly dangerous to those crossing such roads and streets, great care should be required of those having the management of trains. And the law will not permit the company to commit an injury to stock of another straying upon the track, which may be avoided by the exercise of ordinary care.
In the case of C. & Z. R. R. Co. v. Smith, 22 Ohio State, 244, an instruction that “ the defendant had the right to the free and unobstructed use of its railroad track, and that the paramount duty of its employees was the protection of passengers and property in the trains, and the trains itself; but this being their paramount ■duty, they were bound to use ordinary care and diligence so as not unnecessarily to injure the property of others,” was held correct. See also III. Cent. R. R. Co. v. Middlelworth, 46 Ill., 494. Bemis v. Conn., 42 Vt., 375. Isbul v. N. Y. R. R. Co., 27 Conn., 393. This is undoubtedly *83a correct statement of the law, although there are decisions that seem to hold that stock straying upon the track may be killed with impunity. The maxim of the law is, “ enjoy your own property in such manner as not to injure that of another person.” This applies to all owners of property.
There is sufficient in the record to show that quite a number of people witnessed the accident, and in my opinion there is a clear preponderance of the evidence showing that the engine was run at a speed of eighteen miles per hour. The accident seems to have been caused by the high rate of speed at which the locomotive was running, and such being the case the court was justified in its instruction that eighteen miles per hour at that point would be gross negligence. If this was not a thickly settled portion of the city, it devolved on the defendant below to show that as a matter of defense. The court below permitted the jury to deduct the value of the carcass of the cow killed, although Wendt made no use of the same. It is pretty clear that this deduction was unauthorized by the law. In my opinionWendt is entitled to a larger judgment than he recovered, but as he does not complain, and as substantial justice has been done, the judgment should be affirmed.