Opinion,
Mr. Chief Justice Gordon:
This was an action on the case, brought by the plaintiff, John. T. Shurley, against the New York, Lake Erie and Western Railroad Company, to recover damages for the killing, by one of the trains of said company, of a brown mare of the said plaintiff on the night of July 18, 1881. It appears from the evidence that this mare escaped from a driving park where she was pasturing, and wandered on the track of the defendant’s road where she was struck and killed, as already stated, by a passing train.
Without regard to any other question, the case was ruled in the court below against the plaintiff on the defendant’s first point, which is as follows : “ That the horse of the plaintiff was a trespasser on the track of the defendant’s railroad, and there being no evidence that the injury to said horse was wantonly inflicted by the defendant or its agents, the plaintiff cannot recover and the verdict should be for the defendant.”' There was also an offer to prove, on part of the plaintiff, that at the point where the horse entered on the track the ground was open for some distance either way to the public, and had not been fenced by the defendant company as required by the act of assembly. This offer was overruled, and the case was taken from the jury and ruled against the plaintiff, solely on the ground that the act of March 28, 1868, P. L. 514, did not apply to the defendant company. In thus ruling we think the court committed an error.
*518By that act, which includes the county of Warren only, all railroads then constructed or thereafter to be constructed in said county, were to be fenced and guarded as therein prescribed. This is plain enough, but the stumbling block seems to be in the provision that “ all railroad companies, when railroads are completed, and on which they are now running trains in said county, shall, before the first day of September, one thousand eight hundred and sixty-eight, construct and keep in repair or' cause to be constructed and kept in repair, a good and sufficient fence, at least four feet high, along their track, except through incorporated boroughs;.....and all railroads that may hereafter be constructed in said county, are hereby required to construct such cattle guards before running their trains thereon.” This act, by a supplement of April 17, 1869, P. L. 1125, was extended to the counties of Bradford, McKean and Yenango, with this further provision: “That if any companies referred to in said act shall neglect to perform the duties imposed by said act, the company so offending shall be answerable to the owners of cattle, horses, sheep or swine to the value of the property injured upon said roads in consequence of such neglect.” Now, as the road of the defendant was built and in operation in the county of McKean before the passage of the above recited supplement, and as it, the said supplement, must be construed as though it were approved on the 28th of March, 1868, the date of the original act, it is clear that the provision requiring the fencing of roads before the 1st of September, 1868, could not apply to the defendant company, and the court below therefore held that it was not bound by any of the proT visions of the statute. With this conclusion of the learned judge we cannot agree. All railroads whether built -or to be built wire required to be fenced, and the other prescription was. merely a matter of time. Roads then completed, “and on which they are running trains,” must be fenced before the first, of September, and those afterwards constructed must be guarded in a similar manner before running trains thereon. It thus, seems to us obvious that the intention of the fra.mp.rs of the act was merely to give companies which were then operating their roads a reasonable time within which to comply with its provisions, and to avoid all dispute they fixed what should be regarded as a reasonable time.
*519We can readily suppose a case where the very literal construction put upon this statute by the court below, would wholly defeat the operation of the original act even in its application to the county of Warren. The prescribed period within which cattle guards were to be erected applied only to railroads then constructed, “ and on which they are now runniny trains whilst the other prescription applies only to railroads “that may hereafter be constructed,” and companies owning them were required to guard them before running trains thereon. But what of roads which, though fully completed at the time of the passage of the act, had as yet no trains running on them ? Were there such a case, would anyone contend that the company was wholly exempt from the operation of the statute? We think not. The main purpose of the act was to protect the property of the citizen, and the time given within which to fence was a matter of grace to the railroad companies. It follows, that the intention of the legislature was to compel all railroads, on which trains were being run, to be guarded, and to visit the companies owning' them with the cost of doing that which they might neglect to do.
Having thus shown the immateriality of time as it appears in the original act; that it was given as a convenience and indulgence, and not as an essential to the force and validity of the statute itself, we may inquire, if time was not essential in the original act, how does it become so in the supplement where it is wholly insensible and means 2iothing? If in the former it did not defeat the principal intent, how can it do so in the latter? These are questions which seem to us unanswerable, and which the court below did not co2isider. If in the original act the time numtioned, September 1, 1868, be stricken out, its main prescription is not in the least affected. Railroad companies are still required to fence and guard their tracks, as well those already constructed as those to be constructed, aiad the only difference made by the act as it now stands is that the former must have a reasonable time within which to comply with that prescription. Unquestionably then, a proviso which, when operative, did not affect the spirit and intent of the act, cannot be made to do so when it has become inoperative. Whilst, therefore, it is quite possible that the facts of this case may not be sufficient to sustain the plaintiff’s case, *520yet he must have an opportunity of presenting them so that they may be passed upon in a regular manner.
The judgment is reversed and a new venire ordered.