On Petition for Rehearing.
Montgomery, J.8. 11. *2448. *243Appellant’s counsel insist that the instruction, that appellant had the burden of proving the material allegations of its exceptions, was in con-diet with other instructions, and should be regarded as harmful and reversible error. This instruction was conflicting so far as it conveyed any intelligible information to the jury, and the giving of it was erroneous. The filing of timely exceptions to the award of damages vacated the award, and brought the question of damages before the court for trial de novo as a civil action. The jury could not properly know the amount of such award, and hence could not know what, if any, burden was imposed on appellant by this instruction. The exception to the award was not in the nature of an answer in bar, the burden of proving which was wrongfully cast upon appellant, but its only effect was to bring the question of dam*244ages before a judicial tribunal for trial. It seems clear to us, therefore, that this charge did not impose any substantial hardship upon appellant, but only, in terms, assigned to it a burden which was a mere shadow, without weight or significance. When the court in the next instruction correctly advised the jury that appellees could only recover such damages as each had proved by a fair preponderance of the evideuce, it would appear impossible that the jury could have been misled by the preceding charge, so as to prejudice the substantial rights of appellant. In this belief we held that the instruction of which complaint is made was harmless, and on reexamination we are still clearly of that opinion.
12. Appellant complains further of the giving of the eighth instruction, which was as follows: “The statute further provides that when private ways are maintained over the right of way of the plaintiff, in such cases as are involved in the present proceedings, the owners shall, if said right of way is fenced, erect and maintain substantial gates in the line of such fence or fences across such way, and keep them securely fastened and closed, when not in use by themselves, or employes. And in assessing damages in this case you may take into consideration these obligations upon the part of the landowner, but such obligations, as an element of damages, must be confined to the costs and vigilance required to maintain them.” It is argued that there was no evidence as to what it would be worth or how much vigilance would be required to keep the gates closed, and it would be wholly speculative as to the amount of costs and vigilance required to keep the gates closed. We cannot concur in the views of appellant’s counsel. The instruction correctly advised the jury that the law requires the landowner to keep such gates closed when not in use. Evidence upon such incidental and subsidiary matters as the cost and vigilance necessary to keep such gates elosed would not have been proper, and the instrac*245tion criticized did not direct the jury that it might consider such items in estimating damages. The jury was told merely that it could take into consideration, in determining damages, “the costs and vigilance required to maintain them.” In giving their estimates of the value of the adjoining tracts of land after the construction of appellant’s road, the witnesses must have taken into account the matter of erecting and maintaining gates at necessary private crossings. This burden could be estimated and weighed by good husbandmen and competent witnesses with as much accuracy and certainty as the cost and vigilance required to erect and maintain additional fencing made necessary by the laying out and opening of a public highway through an enclosed farm. The instruction is not open to the charge of introducing uncertain and speculative items to the considerations of the jury, but is a fair and correct statement of the law applicable to the subject under consideration. We find no justifiable ground for modifying the conclusion announced in the original opinion, and appellant’s petition for a rehearing is accordingly overruled.