22 Barb. 574 | N.Y. Sup. Ct. | 1855
A correct understanding of the subject brought before us by this appeal may require some examination of the common law rules regulating the rights, duties and liabilities of adjoining land owners, in reference to partition
It'was proved, on the trial of this action, that in January, 1836, when the old Tonawanda Rail Road Company built its road, the land now called the pasture, and a part of which is owned by Bbenezer B. Hollister and a part by the plaintiff, was then owned by James W. Stevens. It appears by the report of the appraisers appointed by Judge Gardner, vice chancellor of the eighth circuit, to assess the damages which James W. Stevens, as the owner of the pasture lot, would sustain by reason of the appropriation of a specified part of the lot, by the corporation, to the use of the said rail road, that such damages were assessed at the sum of $102; and that one of the conditions of the assessment of that sum, mentioned -to Judge Stevens at the time, and acquiesced in by him, was, that he should make and maintain the fences on both sides of the rail road. If James W. Stevens had continued to own the pasture lot to the time of the injury complained of, and the mare that was killed had been his, it is clear that he could have recovered no damages, as the injury was occasioned by the defect of fences which he was bound to build and keep in repair.
The Tonawanda Rail Road Company and the Attica and Buffalo Rail Road Company were consolidated and amalgamated into a single corporation, by virtue of the act of April 9,1850. By the 6th section of that act it is declared that such new corporation shall' not be required to fence the land, on either side of the rail road, between Rochester and Buffalo, where either of the two corporations mentioned in the first section of the act, had, by agreement with the owners of the land, or by the award of appraisers, made provision for having such fences built and maintained by the owners of such lands, and have paid such owners according to such agreement or award. And as to such cases, the provisions of the 42d section of the act entitled “An act to authorize the formation of rail road com
The damages which James W. Stevens sustained, by reason of the appropriation of his land by the Tonawanda Rail Road Company, were assessed, and reported to the vice chancellor in January, 1836. The company was not entitled to the possession and use of the land, for the purposes of its rail road, except on the payment of such damages, or depositing the amount thereof, for the use of the owners, in the Bank of Rochester. The Tonawanda Rail Road Company, though under a-new name, was, up to the year 1853, in the public and undisputed possession of the land, for the uses and purposes for which it was appropriated. This must be prima facie evidence that it had paid the assessment upon which its right to take possession depended ; especially as this fact was not denied on the trial. The case, on the trial before the justice, therefore, did not show, or tend to show, that the plaintiff’s mare escaped from his pasture, on to the rail road, through the absence or defect of a fence which the defendants, as proprietors of the rail road, were bound to build and keep in repair, but rather that she went on to the rail road through the absence or defect of a fence between the rail road and the lands belonging to Hollister, which James W. Stevens or his grantees were bound to maintain, in which the plaintiff had no interest, and in respect to which the defendants, as the proprietors of the rail road, owed to him no duty.
But the appellant put his right to recover, in the justice’s court, against the defendants, principally on the ground that the evidence tended to show that the agents and servants of the defendants, in running their locomotive and cars, on the rail road, burned a part of the fence between the rail road and Hollister’s pasture, and that the mare, being rightfully in the pasture, came on to the rail road through the gap in the fence made by such burning. And he claimed that the defendants were bound to repair the fence, and pay all damages which the plaintiff might sustain by the escape of his cattle through the defect in the fence, until it was repaired, whether he was
But a full and fatal answer to the plaintiff’s action, in whatever aspect it may be presented, is the carelessness on his part, as proved by himself. It appeared by the testimony of his own witnesses that he suffered his mare to run in a small pasture adjoining the rail road, and between which and the rail
In the case of Spencer v. The Utica and Schenectady R. R. Co., which was brought to recover damages of the defendants for an injury sustained by the plaintiff in consequence of the defendants negligently running their train of cars against the plaintiff’s wagon, while he was crossing the rail road, it was keld that in order to warrant a recovery, it must not only appear that the defendants’ agents were guilty of negligence, but that the plaintiff himself was free from negligence or fault. (5 Barb. 337.) In the case of Brand v. The Troy and Sche
The ease of Clark v. The Syracuse and Utica R. R. Co. (11 Barb. 112,) was brought in a justice’s court, to recover- pay for three cows killed by the/ train of -ears on the defendants’ rail road, as- the plaintiff alleged, through the defendants’- negligence. The- jury, in t-he justice’s court, gave the plaintiff a verdict for the value of the cows, upon which the justice- rendered judgment. The defendants appealed to the county court, where the judgment of the justice was affirmed, and the defendants appealed to the supreme court in the 5th district. That court, (Allen, J., giving the opinion,) among other things, decided that an action for negligence could not be sustained if the wrongful act of the plaintiff co-operated with the misconduct of the defendants, in producing the damages sustained, and this was so, whether the plaintiff’s act was negligent or willful. And that when cows are trespassers upon a rail road, their own
In the ease of Haring v. The New York and Erie R. R. Co. (13 Barb. 9,) this doctrine, requiring the party who, in an action, claims damages for an injury occasioned by carelessness or negligence of the defendants, to show that the party who received the injury was free from any act which contributed to produce it, was applied to an action brought by a widow, for the loss of her husband, who was killed by the defendants’ cars while crossing their rail road. And it clearly appearing, on the trial, that the carelessness of the deceased co-operated with the negligence of the defendants in producing the injury, the supreme court held that the circuit judge did right in nonsuiting the plaintiff.
The same doctrine was again recognized in the case of Talmadge v. The Rensselaer and Saratoga R. R. Co. (13 Barb. 493 ;) and again, in the case of Marsh v. The New York and Erie R. R. Co. (14 Barb. 364,) although the company had omitted to build fences, as required by the statutes of 1849 and 1850. And the supreme court, in the 8th district, (Marvin, J., giving the opinion,) have applied the same principle to the father of a lunatic son, near 30 years old, who, while bringing him home from the insane asylum, on the rail road, carelessly or thoughtlessly left him alone, or unattended, in the cars, at a stopping place, for a few moments, and the son not being able
From the above decisions, and those cited to support them, we may extract the following propositions as law:
First. That in all actions brought to recover damages for an injury alleged to have been occasioned by the negligence of the defendant, whether the defendant be an individual or a corporation, to entitle the plaintiff to recover, he must show some fault on the part of the defendant; that that fault will not be inferred merely from the injury, unless the defendant is a common carrier of persons and the plaintiff a passenger, as in the the case in 16 Barb. 113 ; upon which hypothesis we are not called upon to give an opinion.
Second. That in such action a plaintiff cannot succeed, if it appears that his own misconduct co-operated with the wrongful act of the defendant, to produce the injury .complained of.
Third. That the plaintiff, in such an action, cannot recover, if it appear that the injury complained of was received by him while he was trespassing upon the defendant, without proving that such injury was willful and intentional on the part of the defendant. Either of the above propositions (and they are all applicable to the case under consideration) justified the county court in reversing the judgment of the justice,
The judgment appealed from must therefore be affirmed.
Bowen, Mullett and Greene, Justices.]