By the Court, S. B. Strong, J.
The judge before whom this action was tried clearly erred in permitting one of the plaintiff’s witnesses to state what had been the value of his horses in 1889 and 1840, upwards of six years before they were killed, and what he had then paid for them, and in refusing to strike out such evidence when the witness failed to connect what he had stated with their value at the time of the accident. As there were exceptions to both the admission and refusal, we are bound to yield to them, unless we are satisfied that they did not by any possibility prejudice the defendants. Believing, myself, that the rule often operates unjustly, I have frequently endeavored to confine its operation within what I conceived to be rea*497sonable bounds, but without much success, as our judges have generally thought that they were bound to apply it rigidly, and that the legislature alone could furnish the appropriate remedy. In this case, the evidence improperly admitted may have induced the jury to exceed the minimum price mentioned by the only other witness who testified upon that point; and therefore the defendants may have been (although they probably were not) injured, and for that reason they are entitled to a new trial.
I think, too, that the judge erred in refusing to charge the jury, conformably to the request of the defendants’ counsel, that the plaintiff had wholly failed to prove the first count of the complaint, charging that the horses had been killed through the carelessness, negligence and improper conduct of the defendants’ servants. The plaintiff examined but one witness as to that charge, and he effectually disproved it. He testified that the train ran over the horses shortly after midnight, when it was dark and misty—as dark a night as he ever saw—and that they were running very cautiously and easily, uncommonly slow, and with care. As the judge refused to instruct the jury that the plaintiff had failed to maintain his first count, they may have supposed that there was some evidence going to show carelessness, negligence, or misconduct in the defendants’ servants, and rendered a verdict against them upon that charge. It is not probable that they did, but it is not always easy to account for the verdicts of juries, particularly against rail road companies; and as it is possible that the defendants have suffered by the omission of the judge to instruct the jury properly upon this point, they are entitled to a new trial on their exception as to that.
The defendants were wrong in their supposition that there was a fatal variance between the averment in the third count that the plaintiff’s horses had escaped from his close into the close of divers other persons between the plaintiff’s land and the rail road, and the proof that there was but one intermediate close. The difference was not essential; and if it had been, an amendment of the charge, making it strictly conformable to the proof, would have been then, and now, allowable.
The only point of much difficulty in the case is whether a rail *498road company, upon which it is obligatory to make side fences, which they have not done, are responsible for the destruction of horses that have wandered upon their' track from the field of an adjacent owner, into which they had escaped through a defective fence, which he was bound to make, from the adjoining land of the proprietor of those animals 1 The defendants were bound by their act of incorporation to fence their road. (Laws of 1836, ch. 268, § 8, p. 374.) The 44th section of the general rail road act of 1850 (Laws of that year, pp. 234, 235) provides that until the companies shall fence their roads they shall be liable for all damages which shall be done by their agents or engines, to cattle, horses or other animals thereon. In the construction of this act of 1850 we have decided that it did not prevent the applicability of the common law principle that one could not recover for a loss to which his own negligence and misconduct had essentially contributed. (Marsh v. The New York and Erie Rail Road Company, 14 Barb. 364.) If then the plaintiff in this case had wrongfully or negligently suffered his horses to escape and go upon the rail road, he would not be entitled to any redress. It is alleged that he was careless in turning his horses into a field when he must have known that there was no fence, or at any rate not a sufficient fence to prevent their escape on to that part of the rail road in the immediate vicinity. There was some carelessness in that, if the defect in the fence was known to the plaintiff, but the carelessness, so far as it related to the rail road, was by reason of the omission of the company to fence their road. If that had been done, there would not have been any exposure. I doubt, therefore, whether the defendants can avail themselves of a characteristic resulting entirely from their own wrong. Then as to the strict matter of right, the plaintiff was justified in turning his horses into his own field, although his adjoining neighbor’s part of the partition fence ivas defective, and he was excusable if by-reason of such defect they escaped into the adjoining field. Whether, if they passed beyond that, into another close, by reason of a culpable omission of the owner to fence it at all, he was still excusable, is a question of some difficulty. Ordinarily, where one *499is bound to fence at all, it is only as against an adjoining owner. If the cattle of others wander upon his land, although it may not be fenced at all, the owners are liable for the damage. They are considered to be guilty of a wrongful act, and that would prevent a recovery by them of any damage resulting from the trespass, or to which it had been essentially instrumental. Ordinarily, one is bound to adopt such meashres as are necessary to secure his cattle upon his own land, and if they essape he is responsible for their wandering upon the land of any other than the adjoining proprietor who has neglected to make or repair his part of the partition fence. If there had been no provision relative to the construction of fences on rail roads, beyond that which I have quoted from the act of 1886, the liability thrown upon the defendants would have been simply to construct the whole fence, instead of a part of it Only. That would not have extended it so far as to increase the privileges of others than those whose lands adjoin their road. Whether the general rail road act could confer additional private rights upon those whose property is not directly affected by the road, at the expense of those who have vested rights of property, under pre-existing laws, may be very questionable. I expressed an opinion, in the case of Marsh v. The New York and Erie Rail Road Company, that it was competent for the legislature to add the provision in question, as essential to the safety of passengers and freight. My brother Brown expressed a different opinion. I am unwilling to decide so important a question in a case where the point is not necessarily involved in the aspect in which it is presented to us.
[Dutchess General Term;
April 8, 1856.
Upon the first two points which I have considered there should be a new trial. Costs to abide the event of the suit.
New trial granted.
Brown, S. B. Strong and Rockwell, Justices.]