5 Denio 255 | N.Y. Sup. Ct. | 1848
These oxen, when killed, were on the defendant’s land. They had broken from the plaintiff’s field into the highway, along which they wandered to the rail-road, where, leaving the highway, they passed on the rail-road to the place where the accident occurred.
Every unwarrantable entry by a person or his cattle, on the land of another, is a trespass, and that whether the land be enclosed or not. (Wells v. Howell, 19 John. 385; 1 Ch. PIl. ed. 1837, p. 94, 5 ; Browne on Actions at Law, 369.) It is a general rule of the common law that the owner of cattle is bound, at his peril, to keep then) off the land of other persons, and he can not justify or excuse such an entry by showing that the land was unfenced. Fences were designed to keep "one’s own cattle at home, and not to guard against the intrusion of those belonging to other people. (Gale & Whatlay's Law of Easements, 297; Rust v. Low, 6 Mass. 94; Dyer, 372, pl. 10; 1 Cowen, 79, note.) There may be exceptions tc the rule stated, growing out of a necessity, all but irresistible, in particular exigencies, as where cattle driven along a highway, stray from it in sight of the person in charge of them, and pass, against his will, onto unenclosed land adjoining the highway, he making fresh suit to bring them back; for in such case the owner ought not to be chargeable for this involuntary trespass on the land, nor for the herbage the cattle may crop, raptim et sparsim, as they go along. (1 Cowen, 87, note; Com. Dig. Trespass D.; Stackpole v. Healy, 16 Mass. 35; 1 Arch. N. P. 358; Fitz. N. B. 298, note.) But there is no occasion to dwell upon this, or any other common law exception to the rule, for none of them afford any legal justification or excuse, for the entry of these oxen upon the land of the defendants. Nor indeed, was it suggested on the argument, that by the common law, this entry was any thing short of a trespass, although it was urged not to be so under the revised statutes.
By the statute, (1 R. S. 353, art. 4,) it may be made the
Where a prescriptive obligation, rests on.the owner of land.adjoining a highway, to fence against cattle lawfully therein,, he. cannot maintain trespass for an entry by such cattle through a-defect in his fence. This is well settled. But it is not pretended any such prescriptive duty rested on these defendants. On the. argument the case was placed on the ground that the statute, required them to fence against cattle running at large in the. highway, and that is the precise point to be considered.
A section of the revised statutes declares that “ the electors of each. town, shall have power at. their anuual town meeting,” to made.“rules and regulations for.ascertaining the sufficiency, of all fences in such town ;, for determining the times and manner in which cattle, horses or sheep,,shalLbe permitted to go at, large on highways; and for impounding animals.” (1 R. S. 341, §,5, sub. 11.) And? by a subsequent section, (p. 355, 5 44,
The last section of the statute, it will be noticed, applies only where the town has prescribed, “ what shall be deemed a sufficient fence,” and where the beasts were “ lawfully going at large on the highways.”
In 1835, the town of Gates, where these oxen were killed, made regulations, declaring that cattle might “ run at large,” and “ that all fences in said town, should be four feet and a half high and well filled in, and that all persons in said town should fence their lands by such fence.”
Now let it be conceded that these regulations were in as full force when this casualty occurred in 1843, as when made in 1835, I still do not see that they can at all aid the plaintiff. In the first place, that part of them requiring lands to be fenced, is wholly inapplicable to such land as is used for the track of a rail-road where it intersects a highway. In terms, the regulations declare that all lands shall be fenced by fences four and a half feet high, and well filled in, a provision which we cannot suppose was ever designed to have any application to the site of a rail-road where it crosses a highway. It would be absurd to require fences to be made at such places, and the mere general terms of a town regulation should receive a more rational interpretation. To avoid giving a grossly absurd meaning to a statute or regulation, we should not only look at all its words, but, if need be, should understand them in their most rigorous sense. Looking at this regulation then, we shall see that, literally, none but“ persons in said town ” are required thus to fence their lands. The word “persons” doubtless may, and in some cases should, be understood to embrace corpora
But of themselves, town regulations, however explicit, can have no effect upon the particular question now under consideration. If violated, they would neither justify or excuse an entry on the track of a rail-road, nor could they deprive its owners of the right to maintain an action of trespass for the entry. Town regulations have, for these purposes, no intrinsic vigor or authority, and are only made efficient by the forty-fourth section of the statute which has already been set forth at large. That section precludes a recovery, by any person who shall neglect to keep a fence according to the rule prescribed by the town, for damages done by beasts “ lawfully going at large on the highways, that may enter on any lands of such person, not fenced in conformity to the said rule.”
This section, in its terms and spirit, seems applicable to such lands only as are usually fenced, or which are capable of being used in that condition. But this cannot be done-with the track of a' rail-way. No one ever supposed that such a strip of land should be surrounded in its whole extent, by a fence, or that a fence could be maintained across a rail-way at every intersection of a highway. It is not too much to say that this would be wholly impracticable without entirely defeating the great object, accelerated speed, for which rail-roads are allowed to be constructed. The general terms of a statute, declaring what consequences shall follow a refusal or neglect to fence land, in conformity with town regulations, especially, a statute, passed, as the section in question was, years before a rail-road had been made on this continent, cannot reasonably be understood to have any application to land occupied as the track of ■ such á road. If the legislature had intended to confer on the several towns, through which rail-roads might be constructed, the requisite power to compel the owners of such roads, to guard against the entry of cattle, thereon, from the highway, we have a right to believe, that the power would have been given in very
There is another view of this part of the case, leading to the same resqlt. If these oxen were not “ lawfully going at large on the highways,” (§ 44, supra,) their entry on the defendants’ land could not be excused by the want, or defect of fences. The oxen were not in the highway for the ordinary purpose of travel in passing from one place to another, but having broken out of the plaintiff’s field, were literally “at large,” for grazing rest or mischief, as their wants or instincts might prompt. This, in my judgment, was far enough from “ lawfully going at large ” in a highway, notwithstanding the legislature have
The public interest in a highway comprehends the right of every indiv.iduaHo pass and repass-upon it, in person and with his property, at his own pleasure; but confers no right to use it • as a sheep walk or pasture ground for cattle. Subject to this right of .-passage and -the right to make repairs .and the like, the soil of a highway and .the grass and herbage growing thereon, are still,- in the strictest sense, private property. (1 Cowen, 88, note; 2 Smith’s Lead. Ca. Phil. ed. 94, 99, notes; 3 Kent, .432, 434.) .Cattle, .at large in the highway, will not only trample down but also ,crQp and eat the grass and herbage there growing; and if th.e legislature have power to-authorize'their running at large, the grazing cannot be wrongful. What would this be but taking the private property of the owner of the land us.ed as a highway, and transferring it to the owner of the cattle? In my judgment the legislature have no such power, whether compensation be made or not, but certainly in no case, unless compensation is made. On this short ground, I -think .the town regulation .assuming to authorize .cattle to “ run at large’’ was wholly void. But it is not my purpose further to discuss the question, and I will only refer to cases .and books which, in my view, fully .sustain what I have stated. (Stackpole v. Healy, supra; Holladay v. Marsh, 3 Wend. 142; 1 Cowen, 88, note : Taylor v. Porter, 4 Hill, 140.) On this second ground therefore, as well as on that first stated, my conclusion is that these oxen, when killed, were trespassing on the defendants’ land.
6
The present action is founded on the alleged negligence of the agents and servants of the defendants, in running their engine on the rail-way, whereby, as is charged, the plaintiff’s oxen were killed. It is not pretended the act was done, -designedly, by the persons in charge, but simply that it occurred through their negligence and want of care.
. It is a well settled rule of law, that .such an action cannot be sustained if .the wrongful act of-the plaintiff co-operated with
The case of Blyih v. Topham, (Cro. Jac. 158,) was an action for digging a pit in a common, by occasion whereof the plaintiff’s mare, straying there, fell into the pit and was killed. It was held by the whole court that the action would not lie ; the plaintiff had no right in the common, and so, as against him, the digging of the pit wTas lawful. Precisely so in the present case; the plaintiff shows no right to have his oxen on the track of this rail-road, for they were there straying;—he therefore cannot set up that the engine was unfit for use or was run in a negligent manner.
Bush v. Brainard, (1 Cowen, 78,) was in principle like that of Blyth v. Topham. Some maple syrup had been left by the defendant in buckets in an open shed on his own unenclosed wood land. The plaintiff’s cow came in the night and drank the syrup, which caused her death. It was agreed by the court “that, although the defendant was guilty of gross negligence,”—“ the plaintiff, having no right to permit his cattle to go at large” on the defendant’s land, could not recover.
Numerous other cases have been determined on the same principle. Sarck v. Blackburn, (4 C. & P. 297,) was an action brought to recover damages for an injury by the bile of a vicious dog kept by the defendant. The dog was chained in a yard in the rear of the defendant’s house, near one of the passages leading to it, and through which the plaintiff was walking when the dog fell upon him. Chief Justice Tindal, in his charge to the jury said, “the question will turn upon
Where that which is done by a party on his own land is illegal and punishable as such ; or, although not illegal, if it be an act which probably may endanger human life, as the setting of spring guns, he may be responsible even to a voluntary trespasser for injuries thus sustained. (Bird v. Holbrook, 4 Bing. 628; Jordin v. Crump, supra.) But even in such a case, where the plaintiff had notice that deadly engines were placed in a wood, into which he, notwithstanding, entered and was severely wounded, it was held he could not maintain any action, having voluntarily brought the injury upon himself. (Mott v. Wilkes, 3 B. & Ald. 304.)
One who complains of another’s negligence should, himself, be without fault. (Brownell v. Flagler, 5 Hill, 282; Cook v. The Champ. Trans. Co. 1 Denio, 99.) Where the plaintiff, at the time of the alleged injury, was trespassing on the defendant, or otherwise wrong in the particular act complained of, such delinquency alone, with very limited exceptions, is a decisive answer to any claim for damages founded on the defendant’s negligence.
Negligence is a violation of the obligation which enjoins care and caution in what we do. But this duty is relative, and where it has no existence between particular parties, there can be no such thing as negligence in the legal sense of the term A man is under no obligation to be cautious and circumspect
In the present case the charge of the court was in several material respects erroneous.
As to passengers on this rail-road, the defendants were certainly bound by the highest obligations of morality and law, to run their engines and trains, with the most scrupulous care and vigilance. It was also their duty to use every precaution to guard against communicating fire, to buildings or other property, adjacent to the line of their road, or otherwise doing injury . thereto. But they owed no such duty to this plaintiff in regard to his oxen when trespassing on their land. The suggestions of the court below, on this part of the case, would be very appropriate to a case between a passenger who had been injured through the negligenceof an engineer, or the conductor of a train, but had no proper bearing on the case then to be decided by the jury.
The court seem to have held that if the plaintiff’s oxen es- p caped from his enclosure after the exercise of “ ordinary care j and prudence in taking care of” them, he was not responsible I for their trespass on the defendants’ land. This view of the law, we think, cannot be sustained. The plaintiff was bound at his peril to keep his cattle at home, or at all events to keep them out of the defendants’ close, and no degree of “ care and prudence,” if the cattle found their way onto the defendants’ land, would excuse the trespass. It would be a new feature in the
There was manifest error in charging that the town regulation, allowing cattle “ to run at large,” applied to rail-roads as well as highways, so that these oxen were not trespassing on the defendant’s land. Rail-roads, although designed to subserve the public interest and convenience, are still not highways, but in strictness mere private property, and no town has any right to authorize cattle to enter on them.
The jury were told they might determine for themselves, and consequently decide the case on the point, whether running the cars at the rate of eight or nine miles an hour, was not, of itself, an act of culpable negligence. If it had appeared that the road was ruinous, or the engine or cars unfit for use, it would have been right, where the plaintiff was at liberty to complain of a want of care, for the juiy to say whether eight or nine miles an hour was not, under such circumstances, evidence of gross negligence. But where the railway, engines and cars are in good condition, it would indeed be remarkable, if a rate of speed, not beyond half the usual rate on the railways in the state, could be deemed such evidence as would authorize a jury to find the fact of negligence. Upon such a state of facts as I have supposed, the point should not be left to a jury, for the naked fact that the rate of speed was eight or nine miles an hour, would be wholly insufficient to authorize a verdict finding negligence on the part of the owners of the railway.
I am strongly inclined to the opinion that further legislation would be proper to guard against the entry of cattle on land used for the tracks of railways. The loss of property in this manner is of no trivial consequence; but the personal injuries thus inflicted, and the occasional loss of human life, demand that every practicable effort should be made to avert such deplorable consequences.
Whittlesey, J., being a stockholder in- the rail-road com pany, took no part in this cause.
Judgment reversed.