It is objected that the act of February 14,1855, is in violation of the vested charter rights of appellant, and is therefore unconstitutional and void. This question was fully considered by the court in the case of The Ohio and Mississippi Railroad v. McClelland, ante, 140, where it was held that this act was fully warranted by the fundamental law of the State. Being now entirely satisfied with the conclusion then announced, we deem it unnecessary again to discuss the question.
The refusal of the court below to give the seventh instruction asked by appellant, is assigned as error. It asserted that railroad companies, in this State, are not liable for injuries to cattle which have strayed upon the highway, or been voluntarily turned upon the highway, and thence get upon the railroad track, through the want of fences or cattle guards which the law has required the road to erect and maintain. At the common law, owners of stock were required to keep them upon their own premises, or within commons, the use of which they had a right to enjoy. This rule has been reversed by the legislative action of this State. Our statute requires the owner of the soil to fence against stock which the law permits to run at large and in the highway. By the enactment under consideration, railroad companies have been, if they were not previously, placed upon the same footing of individuals. They are required to erect and maintain sufficient fences on the sides of their tracks to turn stock, and to place cattle guards at road and farm crossings sufficient for the purpose. The legislature, to enforce a compliance with the requirements of this act, has provided, that in case the company shall fail to comply, they shall be liable for all damages which shall be done to cattle, etc., by their agents or servants. The act also provides, that when railroad companies shall erect and maintain sufficient fences and cattle guards, in good repair, they 'shall not be liable for such damages unless it is negligently or willfully done.
This enactment -contains no exception or proviso, ¡which relieves the company from damages to cattle getting upon their road from the highway, or by reason of the owner’s negligence. The language of the statute is broad and comprehensive, embracing in terms all damages to cattle getting upon the road when their fences or cattle guards are insufficient to turn stock. It does not provide that they shall be so liable when the owner is free from negligence. Nor does anything appear in the act to induce the belief that such an exception was designed, but such a construction is obviously excluded by the language employed.
They have negatived such a construction, by providing that the road shall not be liable, when they have erected and maintained sufficient fences and cattle guards, unless the act is negligent or willful. Although the act contains other exceptions relating to towns, etc., no such exception as contended for, is named. The very fact, that the act requires cattle guards at road crossings, recognizes the right of owners to permit their cattle to run upon the highway. Thus we think the General Assembly, has unmistakably indicated the intention to impose liability upon the company for all injuries resulting to stock upon their roads, except at the points indicated in the enacting clause, unless they shall have complied with the provisions of this enactment. It is a duty that was designed to be enforced, by the liability thus imposed. To avoid the liability, for damages resulting from such injury to stock, they have only to comply with the requirement of the statute.
When the company have erected and maintained sufficient fences and cattle guards, to recover, the owner must show that the injury to his cattle resulted from the negligent or willful act of the agents or servants of the company. When they have failed to comply with the requirements of the statute, the owner has only to show the omission, and the injury, and the law imposes the liability as a penalty, for failing or refusing to submit to its requirements. The act is designed as a police regulation, as well to protect the traveling public as to compensate the owner for his loss. This liability is imposed upon the company to constrain them to do that which the public safety requires, rather than for the benefit of the owner.
The fifth, sixth and eighth instructions asked by the appellant and refused to be given by the court, assert, in different forms, and with various modifications, the same doctrine contained in the seventh, and were therefore properly refused. Upon this entire record, we perceive no error requiring a reversal of the judgment of the court below, and it is therefore affirmed.
Judgment affirmed.