203 N.Y. 518 | NY | 1911
The complaint, which the defendant contends states no cause of action, alleges that the defendant failed to erect and maintain fences on the line of its road where it passed through the reservation of the Seneca Indians, as a result of which two colts belonging to the plaintiff, which were rightfully pastured on said reservation (plaintiff himself being an Indian) escaped from the pasture to the defendant's road and following along it fell through a railroad bridge whereby one colt received injuries from which he died and the other was seriously *520
damaged and its value impaired. The point of the demurrer is that the liability of the defendant is solely the creation of the statute and that the statute does not impose liability for injuries to stock received in the manner stated in the complaint. Section 52 of the present Railroad Law (Cons. Laws, ch. 49) reads: "Every railroad corporation, and any lessee or other person in possession of its road, shall, before the lines or its road are open for use, and so soon as it has acquired the right of way for its roadway, erect and thereafter maintain fences on the sides of its road of height and strength sufficient to prevent cattle, horses, sheep and hogs from going upon its road from the adjacent lands, * * *. So long as such fences are not made, or are not in good repair, the corporation, its lessee or other person in possession of its road, shall be liable for all damages done by their agents or engines or cars to any domestic animals thereon." We think the question not an open one in this court. In Knight v. N.Y., Lake Erie Western RailroadCompany (
The judgments of the Appellate Division and of the Special Term must be reversed and judgment rendered for the defendant on demurrer, with costs in all courts, with leave to plaintiff to serve amended complaint within twenty days on payment of costs.
GRAY, VANN, WERNER, WILLARD BARTLETT and CHASE, JJ., concur; HAIGHT, J., not voting.
Judgment accordingly.