*1 IN 42 CASES THE COUNT OF APPEALS. against
Corwin Erie and Railroad The New-York
Company.
Where a
corporation neglects to maintain
railroad
fences and cattle
along
(Laws
required by
1850,p. 288,
its
act
railroad
as
the
of
engines
44),
get upon
injured by
and
cars,
and are
its
§
the track
damages, although
the
in
he
not an
is liable to the owner
adjoining
appear
proprietor,
not
how or whence the
and it does
cattle came
upon the road.1
corporation,
comply
seems that a
which omits to
railroad
statute
erecting
guards,
maintaining
as to
to
and
and cattle
is liable
the owner
fences
stray upon
adjoining close,
highway
of cattle which
from an
or the
track
crossing it,
injured by
engines
company, although
are there
lawfully
highway.
in such close
owner,
permitting
such a
of
the mere
to
stray upon
large
land of
or to run at
another
highway
corporation.
it,
not a
which crosses
defence
Per
JJ.
Marvin
Denio,
duty imposed
corporations
The
by
is not
statute
limited
the maintenance of fences and cattle
as
the animals of
highway.
occupants, or
in the
Per
those
Marvin
JJ.
Denio,
1852,
The
action was commenced
the supreme
court,
to recover
defendant
injuries
The
a
oxen owned plaintiff.
pair
issue was
After
joined,
of Broome.
trial
county
Morrell,
before Robert
and tried
the cause was referred
admitted that
as
referee.
pleadings,
sole
Esq.,
the Laws of the
created by
defendant was
corporation,
railroad;
New-York,
to construct
operate
State of
its road
constructed
portion
that,
time of the
Broome;
injuries
county
to run
its agents
of,
was accustomed
complained
the road.
finding
over
cars
portion
engines
case was
follows:
referee contained
of facts Co., 5
v.
Duffy
Hun
Utica,
Railroad
Ithica and Elmira
v.
Rhodes
Co.,
Syra
Corwin the New York and Eric Railroad Co. “ That the plaintiff the owner of a of oxen worth pair $110; that the last of the oxen were on the May, track of the New York and Erie Railroad at a Company, called Summit,’ place Sandford, the town of Broome that at the county; time a train of cars with an on engine passed track at said place belonging to the railroad that one of the was at that company; oxen time struck by severely engine injured, requiring attention, aid and and for some rendered unable to time labor; October, that in 1851, both of the oxen were on the railroad track of the near the same place company, ; where the first occurred that an injury and train engine oxen, killed one and so much passed injured ox other which had been before that he was worth- injured that at ; less the time of occurrences, both the railroad at of the route fenced, was not nor part were cattle guards road; erected at the across said that the crossing place each side of the land on railroad where the oxen were to Uriah who had deeded to the belonged Gregory, injured in fee of said right way company deed, a covenant contained agreed Gregory, maintain all to erect forever company farm; each side of the across his fences on railway the railroad track was a there highway crossing public to the bounds of the lands within the by Gregory conveyed defendant, that the fencesor cattle not protected on the track about one occurred ox first injury highway, rods crossing public twenty-five the cross- further from occurred still and the second injury how, in either ; that it does not satisfactorily appear ing evidence, track; but from oxen came on that there finds accordingly, is of the referee on to fences or cattle passed being how they or highway; crossing track place same, there, does or were appear; happened, four three or track on the railroad seen oxen been the loss That plain- these occurrences. times before OASES IN THE COUNT OF APPEALS. oxen, $110, tiff is the entire value of worth October, interest thereon since 1851.” accruing from the case that his land appeared Gregory occupied situate each side of the
oxen were It did not where the injured. appear plaintiff resided or whore the oxen usually kept. law,
As matter of the referee decided that the defendant was liable for the sustained *3 he $119.62; assessed at this and he ordered judgment costs, ; sum and the counsel for which was entered defendant court sitting On excepted. appeal, supreme district, in the 6th reversed this gave judg- judgment ment The costs the action. .of to this court. plaintiff appealed Dickinson, D. S. for the appellant. Hill, Jr.,
N. for the respondent. J In oxen were May, plaintiff’s Marvin, ‘‘.Summit,” the defendant’s road at a called the upon place Sandford, in the town of Broome and one of them county, was hit and train. October injured passing same the same oxen were the track of the again year, upon road, and the locomotive train of cars run over one of it, them and killed and struck injured other. greatly occurred, where and for some distance- road the injury each land to one way, through belonging Gregory; passed is, land on each owned the side Gregory defendant the land for the and had conveyed make, and forever and covenanted the deed maintain sides road. The rail- all fences on both from rods road some crossed twenty-five thirty highway and some where injury May happened, p'ace rods injury place seventy eighty the land was on or occurred. The October highway ALBANY, SEPTEMBER, against The New-York and Brie Railroad Co. fenced, the railroad was. not nor was there any Gregory; at the crossing highway. plaintiff’s farm lid the railroad. It does not from not adjoin appear ; where the entered the evidence oxen lands could enter the sides of the road along The referee “it does not satis- or from the says highway. how, case, in either the oxen came on to factorily appear evidence, the track but from I am of and find that there no fence or cattle accordingly, being guards, they on to the track crossing high- passed there, How or were does not way. they happened appear.” There is not a of evidence to show that particle tending the oxen entered the railroad where it crosses the and the referee it does not highway, says, satisfactorily how track; the oxen came on to the appear view take of the will not question probably If material. the oxen entered the railroad from the *4 lands of road, the sides of the Gregory along liable, fact, the defendant there no fence being, at the of such ? I am not aware that this entry has question dei ided in been this state since the railroad act of general 1848 beiame a law.
The is of much question and calls practical importance for the construction of 44 of the general act § of 1850 which contains (Laws the same 233), 42 of the act of is: provisions language § “ formed under act shall erect and Every corporation fences on maintain sides their and height law, of a division tence strength required by openings therein, or or bars and farm of the road for gates crossings the use of the of lands such railroad proprietors also construct and maintain cattle at all road guards suitable and sufficient to cattle ani- crossings, prevent on to the- railroad. such mals Until fences getting made, shall be guards duly corporation shall be liable for all which shall be its agents damages THE CASES IN COURT OF APPEALS.
Corwiu The New-York and Railroad Co. Erie cattle, or other horses or engines, thereon; animals after such fences and shall be ' maintained, made and be shall not duly liable such unless any damages, willfully negligently done.” law, the common care the owner was bound take
By his cattle that did not leave his own lands and trespass upon Saund., of his those v. 1 Wm’s neighbor (Pomfret Ricroft, did, if he was himself an 321); state, It has been in this action of settled trespass. long case for that there can be action recovery where the misconduct negligence, plain tiff contributed hence it was repeatedly injury; ¿848, decided, one railroad act of prior time whose trespassing received the could recover damages injury, to refer to It will be railroad company. Den., v. Railroad Tonawanda (5 Company Munger 255), on considered. C. the whole (S. Ap ably question Comst., clear, from the case cited just peal, 349.) law, well of the common from the established principles in this case could that, aside whether the statute are then to consider not recover. We law, so, what, and and if has made any change and entitles him case embraces the plaintiff’s we have here remarked long It should recover. fences; there division in this state statutes touching and reme the rights decisions have been respecting many *5 where cattle have trespassed dies of adjoining proprietors has been decided that fences. defective to fence is not bound land against any proprietor his in close of neigh which are words, him, if come bor. In other the cattle trespassing upon their as close of from the neighbor, trespassers that the fence cf could owner not defend ground defective, no fence. that there was was or against The New-York and Erie Railroad Co. law, to to state of adverted prior Having briefly it. we have consider As are to he we prepared law, them owner of cattle must common seen at keep seen, he ; and also that if we have his own premises was of not, and he negli- did guilty trespassers when his contributed to and injury, gence of he not recover for ground negli- could injury and these Were in the defendant. proper principles gence con- new Circumstances and when sufficient applied and introduction out dition of general thing's arising have been use of railroads the country? They may under the old and sufficiently protective satisfactory entirely a new has state arisen: order of But things things. the uses of discovered applied recently power, man, as a motive has been power appropriated un- before bodies heavy velocity large moving known, a momentum endangering acquiring speed mass, with moving of all animals contact lives coming cars, and at the same time locomotive or putting of all those who are con- the lives and limbs jeopardy train. science nected The danger passengers, shown, has will demonstrate and as great experience cars in their the locomotive or imminent whenever rapid substance come in collision with disturbing movement any ox, An cow the motion or acquired. regularity speed sufficient, track a substance often horse presents track, thus cause to throw the and cars from the engine lives are limbs wreck lost many broken. it To these dangers track; can all animals should be kept fences and track be done by securing it safe other Was at road in some way. crossings, the thousand leave this matter to próprietors important had shown sides ? road lands along Experience not; and would that was also shown that there out of the killing injuring much litigation growing *6 m OASES THE COUETOF APPEALS. of cattle along irritation producing exciting and at times vindictive Under these cir- angry, passions. and, in cumstances statute was enacted question my the law. The very changed essentially fences on the sides their erecting maintaining dutij ; roads is now imposed upon corporations for to be_ benefit duty performed security and also the benefit of the owners of cattle generally. short, are to erect and maintain the corporations fences; so, and until do and their are liable they agents for-all which shall be done damages cattle, horses or other animals thereon. The engines of the statute it is not limited to dam- language general; cattle, &c., of the ages oj adjoiningproprietor, cattle, &c., which lawfully upon adjoining pre- extends, mises, erected, but it where there is no fence to all cattle, horses or other animals. The statute says nothing is, about either however, It parties. added, fences, &c., that after such shall immediately be maintained, made and shall not duly be corporation liable for such unless damages, negligently willfully done. has been that a literal suggested statute reading liable, render the
would in the absence of cattle, for an when the owner had driven injury statute, and left them them the road. The like others, must receive a reasonable construction. We must ascertain intent of the our object legislature; intent, to ascertain such endeavors object we are to consider the scope provision, permitted state at the time the law was enacted. things We know that cattle often from the close of the owner strayed often the lands of a neighbor, trespassed upon land the railroad. owner such neighbor’s adjoins will of the cattle to his neighbor follows, since the means trespass; *7 SEPTEMBER. New-York and Erie Railroad Co. Corwin if from his land on the track his cattle neighbor’s go killed, will not be and are liable, no fence. And to this extent I think there being as a the statute excludes of the the negligence plaintiff, his defence. But should it drove plaintiff appear road, cattle on to the or into the of the neighborhood there, and left them or did other act increasing any positive cattle, to his different would be danger question very maxim, non volenti would then presented. injuria, fit or if it should that cattle had come apply; appear “ maintained,” road where fences had been made and duly them, and had by leaping prostrating through gate, fenced, the road to a where it was not strayed along killed, and been there different would be very question consideration, In the case under there is no presented. referee, evidence or to show how or where finding oxen; his were or were not plaintiff kept his own whether or not kept upon premises; strayed into the and thence on to the railroad. highway, my statute, letter, this case comeswithin the its design and whatever object; negligence appears action, is as a defence to this part plaintiff, excluded the statute.
It has been noticed that who the land Gregory, conveyed farm, for the bound, road his his covenant defendant, with the to erect and maintain the fences. The is a covenant, to this stranger and-cannot be bound it. Had cattle entered the road Gregory’s land, fence, reason of there and been being injured, his covenant would have been a answer to the action. good It must be borne mind that the statute imposes duty to erect and generally maintain company, fence; and individuals have a right hold the for the of this company responsible performance fence, If erected maintained the duty. Gregory satisfied this would have the railroad com- CASES IN .THE COUNT OF ANNEALS. fence; but until would have caused erection pany erected, remained for the fence was company omission. statute, and been *8 arisen since the
Several cases have Barb., In v. decided the court. Moore(8 Suydam supreme : a cow the had not erected fences railroad 358), company was came to the track and was killed. The action on fireman, that and it was held the .engineer liable .to the owner of the or its were company cow, Waldron In v. without of any negligence. proof Barb., the com Rensselaer R. R. Co. (8 390), Saratoga killed A horse was had fence. not erected any pany a few feet from the and found train the night, place n There was no where the railroad crossed the highway. held, not was cattle having guard; that cattle it was erected fences or constructed with injury. chargeable negligence, responsible district. In decided in the 4th These cases were judicial Barb., R. and E. R. Co. th (13 v. N. Y. Brooks The 594), e on to through cows entered highway or from leading across a way erected a passage gate a brick The yard. gate the railroad to across highway entered and the cattle strayed been left along open, There was no fenced. it was not the railroad where the railroad. crossed to the brick yard way guard not was bound construct It was held that company also, that the a cattle this company at. crossing; that not liable. Justice Shankland expressed on the of an cattle of adjoining pro stranger, premises are not within the without protection right, prietor This was not opinion the decision necessary statute. properly says, He real very the case. point is, the case to be decided that when the cattle lands on the a rail are proprietor a stranger those lands on to from pass lands, said left and are proprietor open a gate Railroad Co. Erie The New-York killed, recover, defendant cannot although their owner railroad act has not complied § said road. to fences at other points respect N. Y. Marsh v. case was decided position. Barb., was R. cow killed E. R. Co. usually (14 364), killed at and commons. She pastured highway It was held where the was not fenced. railroad are for damages corporations responsible caused them when omit make willfulness, carelessness, from from mismanagement accident; the careless inevitable but are answerable for who, causes, ness or willful from such misconduct of those sustain them .if injuries stray upon *9 brack, owners, the and carelessness of their through ; the is not is that it gross negligence suffer on the person go large highways in the immediate of a whether the railroad vicinity understand, fenced or not. As be of the learned one judges much stress the shall lays language,—damages their that or when agents engines, &c.,—arguing carelessness, owner the the cattle has been or guilty misconduct, willful has cannot be said that the company caused the I cannot damage engines. in the in that concur construction to the statute given is, in the reasons stated. It quite my already narrow. and Midland too v. The York North Fawcett R., Co. the Law (2 plaintiff’s Railway Equity 289), Eng. horses, the through passed open gate highway, beingi act, the killed. to the were railway on By railway, to erect gates made was the railway company duty the railway, the at the crossings across highways closed, It insisted &c. was them constantly except, keep defendant, not were that the horses lawfully high the was not bound to the therefore company and that way, that held the it "was them but closed against gate keep in case point. This duty liable. was company OASES IN THE OOÜ1ÍTOF APPEALS. Co, against The New-York and Brie Bailroad erecting them gates closed was keeping imposed them, as court would railway company, how the horses came into inquire as highway; held, that the horses were company, In Ricketts v. The East and India highway. West Docks and Junction L. and Birmingham Railway Company (12 Eng. Eq. R., a close 520), sheep trespassing upon adjoining a defect of fences railway, strayed upon and were killed. was It held that railway could not recover at law or under the common railway act; that as bound to fence company close; owners or occupiers adjoining statute, as to other had not common persons, changed law. The statute to make imposed duty railways, and maintain sufficient fences for the land taken separating for the use of the from lands not railway taken, and such lands from and the protecting trespass, cattle of the owners and thereof from occupiers straying thereout, &c. this statute clear did not quite impose general duty making maintaining close, all right there. were to make fences for fully wrongfully They the lands not taken from protecting trespasses, cattle of the owners or &c. The occupiers straying, *10 law, common as to cattle close trespassing upon adjoining was not statute is not Our (as sheep changed. were), thus restricted. it the" erect' maintain By duty fences the sides of the road is as the statute upon general, was to erect and closed the Fawcett's keep supra, our railroad cannot raise ques gate; companies fences, tion, when have omitted to make cattle were close. failed Having are, by legislature, perform duty enjoined “ all of the plain language which shall be done to cattle engines, or other animals thereon.” 5a
ALBANY," against The New-York and Brie Railroad Co. reversed, court should be supreme judgment affirmed, referee should be directed judgment am that the statute which we I J. opinion Denio, are called to construe is not to be regarded merely fences, a division between the land regulation, respecting and those of of the railroad adjoining property: corporations considered as a safe- but that it is rather to be providing for the lives of traveling protection persons animals, and of the which citizens property those roads own. If land com- vicinity may within a railroad tract entered with be might prised farm, no more hazard than an it be reason- might able to construe the act as a modification of the law simply division fences. But when we consider that regarding these tracks are traversed driven at incessantly by engines, irresistible, a and with a force great speed, practically intrusion thereon to result iu the very likely intruder, and in loss of life destruction those who fo are we cannot but see that- traveling upon further view than the legislature something pecu- burthen of fences between niary maintaining adjoining pro- of land. The injunction upon prietors corpora- tions, the fences to construct and maintain and cattle and it is obvious that unqualified, positive has a interest its observance. deep the whole community fences, were to be taken to which relates be If the part law division respecting portion between the cor- dispensed by agreement might and no other person adjoining proprietors, poration cannot be to complain yet have would right of the law that most of objects doubted be defeated. in this would way statute duty am of imposes public opinion *11 of which for a violation railroad they the corporations, upon indictment, interests are individual to are subject IN CASES THE COUliT OE APPEALS. affected or not. geneial Having imposed declare some of has next to duty, legislature proceeded in that of its omission. consequences shall be done case is to “be liable for all which damages cattle, or other animals to horses engines, thereon.” The to make cattle defendant neglected fences; and for want of these safeguards, plaintiff’s railroad and were de cattle came the track of the upon asked to areWe exception posi stroyed. imply that unless and to hold tive language shown to have been cattle are plaintiff’s field, or in is the case not within the highway of the act. This can be maintained spirit position fences; the act to the law division assimulating respecting and if I am had in right legislature supposing to, more referred view the objects important really fenced, intended railroads compel kept animals thereon guards against protected by straying for that from there is ground highways, interpretation. I am satisfied that the section is to design require their track to inclose within sub railroad companies the ditches and to called stantial of animals approach wandering method and that one provided highways, securing with dama charging companies object provision animals, have for all ges injuries moreover, statute; it not material disregarded what circumstances the animals whence or under come track, are enabled to there get provided The case of a of fences or cattle the absence guards. person track, a railroad his cattle would driving willfully another No one can principle. involve application he has another with willfully brought charge himself, non for volinti injuria. fit has taken a similar bench view court queen’s act of the same in an provision English- *12 bo Miller, against Seacord. in its v. (Fawcett less strong language.
purport, Co., 2 Law and and North Midland Eq. York Railway Eng. Rep., 289.) also in favor of am reversing judgment court.
supreme J., were also in JJ., and Dean, C. Johnson Gardiner, court favor of reversing judgment supreme term, the referee. that rendered by affirming J., J., in the took dissented. part Crippen, Hand, decision. Judgment accordingly Miller Miller. Seacord with the An does not for necessity endorser a note dispense presentment taking from the maker notice non-payment hy security payment against his liability. court Nicholas Miller as supreme Action maker, P. Miller as the endorser of and Leonard pro- 1850, note, 2d of $125 dated the missory April, interest, months from date. The eighteen payable and endorsement of the after making stating complaint, note, it was at alleged maturity presented payment, refused, and notice thereof was given thereupon endorser. The answer denied complaint. circuit, in was tried at the cause Westchester county Mr Justice The note was read before Brown and a jury. evidence, of it was de- payment appeared its maker notice of manded of the given non-payment