delivered the opinion of the court.
This was a suit by Meyer for the value of a cow killed by a locomotive and cars on the defendant’s railroad. The petition was framed under the 5th section of the Act concerning Damages (R. 0. 1855, p. 649), and alleged that the killing occurred, not on any portion of the road enclosed by a lawful fence, nor in the crossing of a public highway. The answer admitted the killing, but averred that it happened at the crossing of a public street or highway within the limits of the city of St. Louis. The issue was tried before the court without a jury, resulting in a verdict and judgment for the plaintiff, from which the defendant appealed to this court. There was evidence in the case tending to show that the cow was killed at a point where the railroad crosses a strip of ground which had been dedicated by the proprietor to public use for the purpose of a street in the city of St. Louis, but which had never been used at that place as a street, and could not be so used in consequence of the irregularities of the surface, until first improved.
The court then, at the instance of the plaintiff, instructed as follows:
“ If the court, sitting as a jury, believes from the evidence that there were ditches on both sides of the railroad where the cow was killed, made in the construction of the road, or that the railroad was there on a grade higher than the level of the adjoining grounds, so that the place could not be used *356as a crossing, and that in point of fact the place had not been used, and at the time was not used as a crossing in a public highway ; or that no street, path, lane, avenue or road, used by the public as a highway, crossed the railroad at that place, then the plaintiff is entitled to recover, although the court, sitting as a jury, should believe that the adjoining lands had been laid off into lots, streets and alleys as an addition to the city, and a plat of said addition had been filed, and that the cow was killed at a point where, according to the said plat or map, a street intended to be opened and used as such crossed said railroad.”
The only question involved in the case is as to the propriety of this instruction. I think a street which has been dedicated to public use according to the forms of the law, is a public highway, unaffected by the question whether the land dedicated has been reduced to actual use by the public, and more especially is this true so far as concerns the right of a railroad company to fence the dedicated land. As the appellant could not in this case enclose its road at the crossing of the street at which it is supposed the injury complained of was committed, without unlawfully interfering with the right of the public to the present use and enjoyment of the land dedicated, it would be palpably unjust to hold that it had incurred any responsibility or lost any im-nmnity by its omission to fence.
I think the instruction was erroneous, and the judgment is for this reason reversed and the caxise remanded; the other judges concurring. We will of course not be understood as deciding, that if actual negligence, unskillfulness, or misconduct on the part of the. appellant’s servants is charged and proved, that the appellant will not be responsible.