The opinion of the court was delivered by
ROSS, Ch. J.
The defendant contends that the plaintiff’s horse, on the occasion when it was injured, was wrongfully upon the meadow. The plaintiff had arranged with the owners of the meadow to pasture the horse in a pasture belonging to them, which adjoined the meadow, upon the understanding that it should be kept in the pasture. If the land owners allowed the horse to escape *23upon the meadow, the horse would be wrongfully there neither as against the rights of the defendant, nor of the land owners. The statute requiring a railroad to fence its road is for the protection of the land owners, through whose land it runs, in any lawful use which they may desire to make of their lands : — that is, a use lawful as between the land owner and the railroad company. Under the finding of the jury in regard to the right of the owners of the meadow'to have the defendant fence its road, the owners of the meadow had the right to turn the horse upon the meadow. If they had that right as against the defendant, and allowed the horse to go upon the meadow, in violation of their agreement with the plaintiff, the horse would still be upon the meadow lawfully and rightfully so far as regards the land owners and the defendant. The horse would not be trespassing upon the meadow as to either the land owners or the defendant. It is with reference to the rights of the land owners, and the defendants, that the horse must be wrongfully upon the meadow. It was the duty of the defendant to fence its road, to protect all animals which were, as regards the owners of the meadow, rightfully thereon. Hence the defendant was not entitled to have his request complied with. The plaintiff’s horse was rightfully upon the meadow, for it was there without any fault of the plaintiff, and either by the fault or consent of the owners of the meadow. If by their fault, it was rightfully there as to the owners. They could not complain, or maintain any action of tort, or otherwise, against the plaintiff because of his horse being upon their meadow, and' the defendant was bound to fence its road through the meadow to protect from harm such animals as might be lawfully and rightfully upon it, with reference to the owners of the meadow.
II. The defendant further contends that there was error in that portion of the charge which related to the subject of its request, in that the court did not confine the plaintiff’s recovery for an injury caused by the defendant’s neglect to fence its rail*24road. But, we think, this portion of the charge is not justly subject to this objection. It is true the court did not in terms tell the jury that the injury to the horse must have been caused by the defendant’s failure to perform the duty imposed by statute in regard to fencing its road. But in substance it did so instruct them. It said : “ So that the railroad company is liable for the injury resulting to the horse from getting upon the railroad track,” &c. Under this instruction the injury to be recovered for must have resulted to the horse from getting upon the railroad track. It was not claimed if rightfully upon the meadow that the horse came upon the railroad track through any fault or neglect, except the failure of the defendant to fence its road as required by law. This was a correct statement of the law that the injury must be caused by the failure of the defendant to discharge its statutory duty. It might well have been more full, and it may be well presumed that the charge if given entire would show that it was more full and explicit on this subject. The exceptions pretend to give only that portion of. the charge which relates to the defendant’s request. ¥e find no error in the proceedings.
Judgment affirmed.