The assignment of error in this case questions court in overruling the demurrer to plaintiff’s declaration. The first count is constructed under the act of the legislature, approved on the 14th day of February, 1855, which provides, that “ Every railroad corporation whose line of road, or any part thereof, is open for use, shall, within six months after the passage of this act, and every railroad company formed or to be formed, but whose lines are not now open for use, shall, within six months after the lines of such railroad, or any part thereof, are opened, erect and thereafter maintain fences on the sides of their road, or the part thereof so open for use, suitable and sufficient for to prevent cattle, horses, sheep and hogs from getting on to such railroad, except at the crossings of public roads, highways, and within the limits of towns, cities and villages, with openings, or gates, or bars, at the farm crossings,” etc. The doctrine is laid down in Chitty’s Pleadings, p. 223, “ that where there is an exception in the enacting clause of a statute, the plaintiff suing under it must show that the defendant is not within the exception; but if there be an exception in a subsequent clause, that is matter of defense, and the other party must show it, to exempt himself from the pen*392alty.” See also Gould’s Plead. 179. This count fails to negative the fact that the colts might have been killed at a crossing of a public road, or in the limits of a town, city, or village. And if they were so killed, the defendant is not liable under the statute; and to have shown its liability, it should have specifically averred that they were not killed in the excepted places, as this exception is within the enacting clause of this statute. There is no averment of negligence on the part of the company, or of its officers, agents, or servants, and was therefore clearly bad, and the demurrer being to each count, should have been sustained to this one.
The second count refers to this statute, but is more general, and alleges that the colts were killed by the mere negligence and carelessness of the agents and servants of the defendants in operating their engines and cars, on their railroad. In an action on the case, it is not necessary to aver gross negligence, but only to aver that the act was negligently and carelessly performed; see 1 Chit. Pl. 80. And when the right of recovery depends upon the degree, as for willful or gross negligence, it is a matter of proof and not of pleading. The allegations in this count, that the defendants had failed to fence their road, may be treated as surplusage, and the plaintiff has still shown a cause of recovery. But the court below erred in overruling the demurrer to the first count, and for that reason the judgment of that court should be reversed and the cause remanded.