The opinion of the court was delivered by
Taut, J.
The questions in this case arise upon the charge ; the objections made to it are, first, that it “ was misleading, as it placed the statute before the jury, as a means for the protection of passengers, and submittted it to the jury to say whether the ■defendant had fairly done its duty to that end and purpose.”' The court told the jury that the object of requiring cattle-guards-was undoubtedly two-fold, the safety of passengers and the safety of animals straying upon the track, and that these objects must be borne in mind when inquiring whether the defendant had done its duty within the meaning of the statute. We think the purposes and objects of the statute were fairly and fully explained by the court. The safety of passengers and the safety of animals upon the track, were questions so intimately connected that they could not well have been divorced, for the danger to the-former arose directly from the injury to the latter ; the cattleguárd was the means of preventing both, and it was not error to place before the jury thé statute in respect to both ; but admit*279ting it was error, the plaintiff could not have been injured by the instruction that the defendant must not only have performed its duty in respect to preventing animals straying upon its track, but, in addition to that, must also have fulfilled its duty in regard to its passengers. The jury could not have understood from the charge that if the company performed its duty in respect to passengers, it was relieved from that in regard to animals getting upon the track. It seems to .us that not only was tiie plaintiff not injured by the charge, but benefited, by having the burden cast upon the defendant of showing that it had fulfilled its duty in both respects. The charge of the court required the defendant to satisfy the'jury that it had performed its whole duty in maintaining its cattle-guards, in respect of its passengers, as well as animals getting upon its track, and if that part of the charge relating to passengers could have been omitted without error, its being given benefited rather than injured the plaintiff for the reason above stated. Second, that it was error to say to the jury that “ the Legislature probably never intended to require of a railroad the duty to keep these cattle-guards clear of snow and ice when doing so would practically impose a burden upon the road that was incommensurate with its duty both to the public and its own passengers.” This is a single extract taken from a full and, as we think, comprehensive charge upon the duty of a railroad company to comply with the statute, and must be considered in connection with the rest of the charge. The court told the jury that the company must keep its cattle-guards sufficient in winter as well as summer, and likened its duty to that of towns, under our former highway law, when they were obliged to keep the highways in good and sufficient repair at all seasons of the year ; it referred to roads being liable to blockade by snow aDd to such sudden rain and snow storms accompanied by freezing, as would render it impossible for a company to clear out all its cattle-guards at once, but that under all circumstances it must discharge this obligation imposed by the statute, in a diligent and prudent way: this is the exact measure of its duty after cattle-guards are once constructed; for *280then a company is liable only for its negligent and wilful acts. If it was diligent and prudent it necessarily follows that it was not negligent, and therefore not liable under the statute. The test of a railroad company’s liability is not whether the guards are “ clear ,of snow and ice,” but whether, in their maintenance, the com • pany is negligent, and this must be determined by the jury under all the circumstances in the case, e. g., the location of the road, the position and condition of the guard, the number of animals which might reasonably be apprehended to be at large, the prevailing storms, the nature and character of the weather, and all other facts bearing upon the question. The remarks of the Judge, in connection with the rest of the charge, were not error. Third, that the charge “makes the discretion, convenience and necessities of the managers of railroads, and not the statute, the test of legal duty.” We do not take this view of the charge. The defendant was held strictly to the duty imposed upon it by the statute, to maintain cattle-guards sufficient to prevent cattle and animals from getting on the roadbed. The statute must have a reasonable construction ; it cannot mean that a guard must be so built that under no circumstances could an animal cross it, but under all ordinary circumstances is it sufficient to prevent cattle aind other animals from getting upon the track. A wild bull or a pair of frightened, runaway horses might cross a guard conceded by all to be sufficient under the statute. We find nothing in the charge to indicate that the court made the discretion, convenience or necessities of the defendant, instead of the statute, the test of legal duty. The cause was properly submitted.
Judgment affirmed.
Royce, Ch. J., and Yeazey, J., did not sit, being absent.