| NY | Jun 17, 1890
Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *573 The mill stands fifty-nine feet, four and one-half inches south of the center line of the railroad. Five feet of the space between the mill and the land of the railroad is occupied by a platform in front of the mill, which is ten feet long and about as high as the top of a wagon. The boundary line between the mill property and the railroad land is but four feet and ten inches north of the north edge of the *575 platform. Teams, in approaching the mill and while standing at it, occupy a part of the right of way of the railroad. East and west of the mill and on the south side of the railroad it is fenced, and it is fenced on its north side, except where the lane which leads to the mill crosses the track. When the right of way was granted from the mill property its owner bound the railroad to leave its land opposite his mill unfenced so as to permit free passage to and from it. This mill was about 150 feet west of the freight depot and the railroad land in front of it may be said to form an extension of the station grounds. This being the situation, the agent of the owners of the team drove it on this strip of land, stopped in front of the mill and there left it standing, partly on the land belonging to the owners of the mill and partly on that of the railroad corporation, for the purpose of delivering a load of wheat. The driver left the team so standing unattended and it escaped upon the railroad tracks and the horses were killed. The railroad corporation permitted its land to be used as a way for the owner of the mill and his patrons to go to and from it, of which privilege the plaintiffs were in the act of availing themselves when their team was killed. To hold that the fencing statute was designed to prevent the owners of a team from voluntarily driving it onto the lands of the corporation, or being so on, to compel the corporation to indemnify its owners for the loss occasioned by the negligence of their agent in permitting the team to escape onto the track in front of a moving train, is to give the statute an effect not contemplated by its authors and not thought of, I think, heretofore.
Many places adjacent to railroad stations, which are not highways nor strictly station grounds, are necessarily left unfenced for the accommodation of the adjoining owners and the public; and to hold that, in all such cases, a railroad is absolutely liable for an injury sustained by teams which enter on the track while in the care of their drivers, without regard to the question of the negligence of their owners or drivers, is to impose an unreasonable liability on the roads, and one altogether foreign to the purposes of the statute. *576
The court erred in refusing to hold that the railroad was not required to fence its road at this point within section 8 of chapter 282 of the Laws of 1854, which provides: "But no railroad corporation shall be required to fence the sides of its roads except when such fence is necessary to protect horses, cattle, sheep and hogs from going onto the track of the railroad from the lands adjoining the same."
I am unable to concur in the reasoning that the escape of this team onto the railroad land proves that a fence was necessary to protect horses from getting on the track from lands adjoining the same. If this conclusion follows from the facts in this case it is difficult to see why the injury of a team by a collision with a moving train at points other than at highway or farm crossings will not always amount to proof that a fence was required by the statute.
The judgment should be reversed and a new trial granted, with costs to abide the event.
Concurrence Opinion
I concur in the opinion of the chief judge and desire to add the following considerations. Had the mill stood upon the line of the defendant's right of way, there could be no question but that it would serve the purpose and be regarded as an ample fence, and the fact that it stands back from the railroad lands four feet and ten inches does not materially change the situation.
If the plaintiffs or their agent had driven their teams in by the side of the track wholly upon the railroad lands and the horses had escaped upon the track and been killed, it could not be said that they had escaped from lands adjoining the railroad lands or that a fence on the line of the right of way would have afforded any protection. The escape in question was partially from the railroad lands; it was from a point between the platform of the mill and the railroad tracks, and, whilst one of the horses may have stood on land adjoining the defendant's right of way, it does not appear to me as materially changing the situation. A fence would not have afforded a protection to the team, it only would have prevented the *577 plaintiffs' agent from driving so close to the platform of the mill and forced him to drive in wholly upon the railroad lands.
Dissenting Opinion
The only exception that presents any question for discussion was taken by the defendant to the denial of its motion to nonsuit made at the close of the evidence. That motion was based upon the following grounds: 1. That the engine which struck the team did not belong to the defendant, but to the New York and New England Railroad Company, "which had a joint right with the defendant and was jointly liable, if anybody was liable, to see that there were fences there before they had a right to run an engine over this railroad track." 2. That the railroad is substantially fenced upon the side from which the team came, and there is no requirement in the statute that the fence should be on the line distinctly between the adjoining owner and the railroad, but it may be upon any line which answers the purpose. 3. That the driver of the team was guilty of contributory negligence. 4. That the owner of the land, having required a covenant from the defendant that the place should be left open, would have no right of action if his own stock went upon the track from the adjoining land, and his licensees, or all people who came to his mill, stand in the same position that he would.
The statute requires that "every railroad corporation whose line of road is open for use shall, within three months after the passage of this act, and every railroad company formed or to be formed, but whose lines are not opened for use, shall, before the lines of such railroad are opened, erect and thereafter maintain fences on the sides of their roads; * * * and so long as such fences * * * shall not be made, and, when not in good repair, such railroad corporation and its agents shall be liable for damages which shall be done by the agents or engines of any such corporation to any cattle, horses, sheep or hogs thereon; and when such fences * * * shall have been duly made, and shall be kept in good repair, such railroad corporation shall not be liable for any such damages *578 unless negligently and willfully done." (Laws of 1850, chap. 140, § 44, as amended by Laws of 1854, chap. 282, § 8.)
The learned counsel for the defendant says, in his points, that "the statute is penal and cuts off the defense of contributory negligence," so that we are relieved from the duty of examining the case with reference to the subject of negligence on the part of the driver of the team. The substantial question, therefore, is whether the defendant is liable, inasmuch as the injury was inflicted by an engine that did not actually belong to it.
By a written agreement between the two railroad companies, the New England road was allowed "to run freight and passenger trains upon the tracks of the railroad" belonging to the defendant, which covenanted "to keep its said railroad, so to be used by the parties hereto jointly, in good and proper order for the safe operation thereof by both parties." The New England road agreed to pay a stipulated sum annually "for the use of said track," and that its trains should be "run, operated and controlled according to the time tables, rules and regulations of" the defendant.
It is evident, from these provisions, that this case does not come within Ditchett v. S.D. P.M.R.R. Co. (
In this case the New England road had neither possession nor control of the railroad, but simply a right of passage for its trains, subject to the rules and regulations of the defendant, which had never built a fence at the point in question, although it was organized in 1867.
It has been held that to create a liability under the statute there must be some action on the part of the corporation, by its mechanical or other agents, producing the injury, and, *579
hence, that there is no liability for the value of a colt, which, although it went upon the track because the fence was down, was not injured by a train, but by falling into the open spaces between the ties of a bridge. (Knight v. N.Y., L.E. W.R.R.Co.,
The object of the section, as it has been held repeatedly, is to protect passengers upon railroad trains from accidents, as well as to prevent loss to owners of horses and cattle. (Corwin
v. N.Y. E.R.R. Co.,
It was enacted, as was said in another case, "from public considerations. Its purpose was to protect the traveling public, as well as farmers along the line of railroads, and it should receive such a construction as to afford the protection designed." (Purdy v. N.Y. N.H.R.R. Co.,
It was of no concern to the public or to the plaintiffs *580
whether the strict legal title to the engine that killed the horses was in the defendant or in some other corporation, as long as it was running upon the defendant's track by its invitation, under its regulations, and, indirectly, at least, for its benefit. Sound public policy requires that all trains that are permitted by a railroad company to run upon its track while it is in full possession, should be treated as its trains for the purpose of enforcing the statutory liability for operating the road before it is properly fenced. The defendant had no right to open its line for the use even of its own trains until it had complied with the fencing statute, and when it gave a right of passage to the trains of another corporation it made those trains its own, so far as a violation of the law is concerned. While the engine that did the mischief did not belong to the defendant in the ordinary sense of the strict ownership of property, still, within the broad purview of the statute, passed for the protection of the public and essential to the safety of passengers, I think that any engine which passed over the defendant's road with its consent, and, in a measure, under its control, should be regarded as the engine of the defendant. This position is supported by well considered decisions in other states, made when similar statutes were under consideration, and it is in conflict with no authority to which our attention has been called. (Fontaine v. S.P.R.R. Co.,
The claim of the defendant that its road was substantially fenced upon the south rests upon the theory that the mill itself was a fence, or stood in the place of a fence. There was no fence, however, between the vacant land in front of the mill and the land of the defendant. If there had been, as the uncontradicted evidence shows, the accident could not have happened.
It is doubtful whether any question was raised upon the trial as to the necessity of a fence at the place in question under that part of the statute which provides that "no railroad corporation *581
shall be required to fence the sides of its road, except when such fence is necessary to prevent horses, cattle, sheep and hogs from getting onto the track of the railroad from the lands adjoining the same." (Laws of 1854, chap. 282, § 8.) Assuming, however, that the question is before us, it should be answered in the light of the rule already alluded to, that the statute should be liberally construed so as to afford the public adequate protection. The command of the statute to all railroad corporations is to erect and maintain fences on the sides of their roads, except when no fence is necessary to prevent horses, etc., from getting onto the track. If the defendant claimed that the locality under consideration came within the exception, it was its duty to show it. It is certain that if there had been a fence of the proper heighth and strength in front of the mill the horses could not have gone upon the track. It is also certain that there was nothing to prevent the various animals named in the statute from straying down the lane leading from the highway to the mill, and, turning to the west, reaching the open space in front thereof, and thence going upon the track as these horses did. It was the aim of the legislature to prevent animals from entering upon the railroad track from the adjoining lands, and wherever a fence is necessary for that purpose the law requires the company to erect it, and inconvenience is no excuse for failing to comply with the requirement. (Bradley v. B., N.Y. E.R.R. Co.,
But does the statute apply to horses harnessed and hitched to a wagon? Why not, if they have escaped from the control of the driver? Is a horse less dangerous upon a railroad track because he is harnessed? Does the statute except horses of a certain kind or under certain circumstances? On the contrary, it says that until the fence is built the company shall be liable for the damages done to any horses. This is not the case of a traveler upon a highway with his horses in custody, as in Ditchett v.S.D. P.M.R.R. Co. (
The covenant contained in the conveyance of the right of way cannot override the statute nor relieve the defendant from the duty imposed thereby. The plaintiffs were strangers to that covenant, and, so far as appears, did not even know of its existence. If a railroad company can get its right of way cheaper by entering into an agreement with the owner that no fence shall be built upon the land conveyed, it cannot be allowed to claim the protection thereof as against a stranger sueing for damages caused by a violation of the statute requiring the erection of fences.
I think that the judgment should be affirmed, with costs.
POTTER, PARKER and HAIGHT, JJ., concur with FOLLETT, Ch. J. BRADLEY and BROWN, JJ., concur with VANN, J., in *583 his views, and dissent as to points discussed in the prevailing opinions. All concur with VANN, J., as to first question discussed by him.
Judgment reversed.