37 Barb. 516 | N.Y. Sup. Ct. | 1862
By the Court,
The only question arising in this case is whether the wrongful act of the plaintiff contributed to produce the injury complained of. At common law the owner of cattle was bound at his peril to keep them on his own premises, and if they escaped he was liable, in an action of trespass, for damages, at the suit of the party injured. The owner has also a right for the passage of his cattle over and upon a highway, using ordinary and proper care and diligence in driving, and if they stray out of his sight and pass, against his will, into uninclosed land adjoining the highway, he making fresh pursuit to bring them back) he would not be chargeable for this involuntary tres
Since the passage of the general rail road act, it has been held that a rail road corporation which omits to comply with the statute as to erecting fences and cattle guards, is liable to the owner of the cattle which stray upon the track from an adjoining close, or the highway crossing it, and are there injured by the engines of the company; although they were not lawfully in such close or highway. In such case the mere negligence of the owner in permitting his cattle to run at large in the highway which crosses it, is not a defense to the corporation. (Corwin v. The New York and Erie Rail Road Co., 13 N. Y. Rep. 42.) In that case the company had neglected to make fences and cattle guards, and it was held that the statute was not to be regarded as merely a regulation respecting division fences between the lands of the rail road corporations and those of adjoining proprietors; but that it was rather to be considered as providing a safeguard for the protection of the lives of persons traveling by rail road and the property in animals which citizens in the vicinity of those roads may own. The provisions of the general rail road act of 1848, requiring companies to construct and maintain cattle guards at all rail road crossings, sufficient and suitable to prevent cattle and animals from getting on the rail road, does not however apply to streets in cities and
Although the plaintiff had a right to use the street for the passage of his cow, exercising due diligence, there is no evidence that she was driven along for that purpose by the owner or his servant. Neither is there any evidence in the case from which an absence of carelessness or negligence may be fairly inferred. The plaintiff was guilty of negligence in suffering the cow to be at large and astray upon the rail road track.
In Hartfield v. Roper, (21 Wend. 622,) Justice Bronson, in delivering the opinion of the court, says: “The illustration sought to be derived from the law in respect to the injury to animals turned or suffered to stray into the street, does not strike me as fortunate. If they be there without any one to attend and take care of them, that is a degree of carelessness in the owner which would preclude his recovery of damages arising from mere inattention on the side of the traveler. Indeed, it could rarely be said that animals entirely unattended are lawfully in the roads or streets at all. They may be driven along the road by the owner or his servants, but if allowed to run at large for the purpose of graz
.The judgments of the justice, and of the county court, were erroneous, and should be reversed.
Hogeboom, Peckham and Miller, Justices.]