(after stating the facts). 1. Section 6644 of Kirby’s Digest provides: “It shall be the duty of all railroad companies organized under the laws of this State, which have constructed, or may hereafter construct, a railroad which may pass through or upon any inclosed lands of another, whether such lands were inclosed at the time of the construction of said railroad or were inclosed thereafter, upon receiving ten days’’ notice in writing from the owner of said lands, to construct suitable and safe stockguards on either side of said inclosure where said railroads enter said inclosure and to keep the same in good repair.”
Section 6645 prescribes a penalty of not less than $25 nor more than $200 to go to the party aggrieved by reason of a failure to comply with the statute.
The apeilant contends that the suit was brought before the cause of action accrued, and was therefore premature, because the allegation of the complaint and the proof show that the notice which must be given before there can be any cause of action, was not given till May 30, 1907, whereas the original complaint was filed May 11, 1907. But the appellant demurred to and answered the complaint, and it does not raise the question in its answer or demurrer. In fact, it only raises the specific question *536here for the first time. Moreover, the appellee on July 16, 1908, filed an amended and substituted complaint alleging a cause of action, which had then accrued. There was no objection to this proceeding, and the cause progressed to trial and judgment upon this complaint and the answer, originally filed, as an answer to the substituted complaint. The proceeding was equivalent to a new suit begun on the date of the filing of the substituted complaint.
The last announcement of the court on these points is in Ferguson v. Carr, 85 Ark. 246, where Judge McCulloch, speak-for the court on motion to rehear, said: “The objection that an action has been brought prematurely is waived by failure to object at the proper time. It has also been held that the bringing in of a new cause of- action which accrued after the commencement of the suit is waived by filing of an answer which does not raise that question as a defense.” Citing cases.
2. Appellant does not deny that its railroad passes through appellee’s inclosure on the land as described in the complaint. Appellant, while denying that it received any notice whatever, does not deny that the notice was sufficient in form, if given.
The statute only requires “notice from the owner to construct suitable and safe stockguards on either side of said inclosure where said railroad enters said inclosure and to keep the same in good repair.” It will be observed that an accurate description of the land by legal subdivisions or metes and bounds is not essential.
The notice informs' appellant that “its stockguards where its line of railroad enters appellee’s inclosed field” (giving the particular quarter section and the particular parts of the quarter section where the railroad entered the land and was situated, and the section, township and range of the land) are in defective condition. It would not have been difficult for the company under this notice to have ascertained where the cattleguards designated were entered.
The court in St. Louis, I. M. & S. Ry. Co. v. Mendenhall, 71 Ark. 133, cited by appellant, was not laying down any requirements for such notices, but was only passing upon the sufficiency of the notice in that case.
We are of the opinion that the notice under consideration *537was amply sufficient in form to meet every demand of the statute, or of any decision heretofore rendered.
3. The first -clause of the first paragraph of the instruction was merely a recital of the requirements of the statute under which 'the suit was brought. The instruction uses the words “good” and “sufficient,” while in the statute the words are “suitable” and “safe.” But they are substantially the same, and the instruction merely used the words “good” and “sufficient,” without undertaking to define what they meant or the measure of duty required by them.
The second clause of the first paragraph, that tells the jury they are not to take into consideration the question -of damages, but only the question as to whether or not appellant had complied with the notice and made repairs, was only meant to tell the jury that the liability of appellant did not depend upon the question of whether appellee was damaged, but only upon the question of whether, after notice, it had complied with the statute by keeping the stockguards in repair.
The third clause of the first paragraph, that places the burden on the appellee to show that the stockguards were insufficient, does not, as appellant -contends, make appellee an insurer of the sufficiency of the stockguards. Requiring appellee to show that the stockguards were insufficient, as a condition of her recovery, is quite a different proposition from making appellant an insurer of their sufficiency. We see nothing in the instruction in conflict with the opinions of this court in Choctaw & Memphis Railroad Co. v. Goset, 70 Ark. 427, Choctaw & Memphis Railroad Co. v. Vosburg, 71 Ark. 232, and St. Louis, Memphis & Southeastern Ry. Co. v. Busick, 74 Ark. 589, where the measure of the duty of a railway company under this statute is correctly defined. The court in the first paragraph of the instruction did not undertake to declare w-hat the words of the statute “suitable”’ and “safe” meant or the measure of appellant’s duty thereunder. The measure of appellant’s duty was -defined in the second paragraph, and there is nothing -contained therein in conflict with the above decisions. Appellee was entitled to recover when she proved that the stockguards were -out of repair, and that she had given appellant notice as required by the statute to repair same, which it had failed to do. These facts being shown made appel*538lant liable, and the burden was then on appellant, as the instruction declared, to show any mitigating circumstances. But this language does not imply, as appellant argues, that, unless appellant did show mitigating circumstances, the jury were required to return a verdict for the maximum penalty. The jury in such cases are not required to return a verdict for the maximum penalty unless mitigating circumstances are shown by the railway company, nor are they required to measure the amount of their verdict by the actual or compensatory damages' which the plaintiff may have shown. While the actual or compensatory damages do not constitute the inflexible criterion for the amount of the verdict, it is entirely proper for the jury to take these and ail the mitigating circumstances into consideration in determining what amount of penalty they will assess between the minimum and maximum as prescribed by the statute. Kansas City, Pittsburg & Gulf Ry. Co. v. Pirtle, 68 Ark. 548.
Judgment affirmed.