
    (67 Misc. Rep. 46.)
    SEELEY v. LAKE SHORE & M. S. RY. CO.
    (Chautauqua County Court.
    March 21, 1910.)
    1. Justices of the Peace (§ 183)—Appeal—Review
    Every reasonable and warrantable intendment is to be indulged in favor of a judgment of a justice, and it is not to be disturbed, unless his decision could not reasonably have been made.
    [Ed. Note.—For other cases, see Justices of the Peace, Cent. Dig. §§ 705-714; Dec. Dig. § 183.]
    2. Railroads (§ 413)—Injuring Animals—Crossings—Gates.
    Under Railroad Law (Laws 1890, c. 565) § 32, requiring a railroad company to erect and maintain a fence at the side of the road of sufficient strength to prevent cattle going on its road, with openings with gates therein, it is liable for an animal killed on the track which got there through such a gate, by reason of a structural defect therein, admitting of an opening of two or three feet on application of moderate pressure.
    [Ed. Note.—For other cases, see Railroads, Cent. Dig. § 1468; Dec. Dig. § 413.]
    
      Appeal from Justice Court.
    Action by Mason Seeley against the Lake Shore & Michigan Southern Railway Company. Judgment for plaintiff. Defendant appeals-
    Affirmed.
    J. L. Hurlburt, for appellant.
    Edson & Crosby, for respondent.
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
   OTTAWAY, J.

This is an appeal taken from a judgment of a

justice of the peace of Chautauqua county, awarding damages to the plaintiff against the defendant for the value of a bull killed upon defendant’s right of way. The evidence discloses that this animal was in a pasture adjoining the defendant’s railroad. The defendant had erected a substantial wire fence along the line of its right of way, with a gate leading from the pasture upon the defendant’s railroad. There-is evidence tending to show that this gate was out of repair. Testimony was given upon the trial that the gate was designed to operate by means of two hinges fastened to the gate and connecting the gate to a post by two hooks. A witness testifies that the upper hinge simply rested upon the hook, and that any pressure upon the gate would cause the gate to tilt, and leave a space of from two to three feet between the post and the gate. There was sufficient testimony in the case from which it could be inferred and determined by the trial court that this condition was structural, and not the result of accident. The space thus created would be sufficient to permit the passage of the animal upon the defendant’s right of way. From this testimony the trial court has found the essential elements of a cause of action in cases of this character.

It has long been the uniform practice of this court, in reviewing judgments and proceedings had before a justice of the peace, to view them with indulgence and to sustain them by every reasonable and' warrantable intendment. Schoonmaker v. Spencer, 54 N. Y. 366. Public policy requires that the judgments and decrees of justices’" courts should not be reversed or modified, unless the decision of the justice or jury could not reasonably have been made. International Tailoring Co. v. Bennett, 113 App. Div. 476, 99 N. Y. Supp. 438; Brewer v. Califf, 103 App. Div. 138, 92 N. Y. Supp. 138.

Section 32 of the railroad law of the state of New York (Laws 1890, c. 565) provided:

“Every railroad corporation * * * shall * * * 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 with farm crossings and openings with gates therein at such farm crossings whenever and wherever reasonably necessary for the use of the owners and occupants of the adjoining lands, and shall construct where not already done, and hereafter maintain, cattle guards at all road crossings, suitable and sufficient to prevent cattle, horses, sheep and hogs from going upon its railroad. 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. When made and in good repair, they shall not be liable for-any such damages, unless negligently or willfully done.”

Frequent adjudications have been made by the courts of this state, defining the application of this statute to facts presented for consideration. Recoveries' have been uniformly sustained, where the evidence disclosed a violation or a negligent disregard of this statute by railroad companies. The defendant in this case admits the presence of the animal upon its right of way opposite the pasture where it had been and its killing by the defendant’s locomotive. It insists that the proof is not sufficient to. establish a liability upon the part of the defendant by reason of its failure to keep its fence in repair, or that the presence of the animal upon its right of way was due to any defective condition in the fence of defendant. It was incumbent upon the plaintiff to establish these facts before he could recover. The justice by his judgment has determined that these facts were established. The evidence seems to sustain this proposition.

The further claim is made by the defendant that, if any defect existed, no notice, either actual or.constructive, had been given the defendant of this condition. The evidence in the case warrants the inference and determination that the defect was structural, and had existed for a considerable time, and that the defendant ought, in the exercise of reasonable care, to have known of this condition, and was negligent in not discovering and correcting this condition. It cannot be said that a gate adjoining a pasture containing stock that admits of an opening of from two to three feet upon the application of moderate pressure is of sufficient strength to prevent cattle from going upon railroads, and it cannot be said that such a fence is a proper structure in such localities.

The judgment in this case must be affirmed, with costs to respondent. Dayton v. N. Y., L. E. & W. R. R. Co., 81 Hun, 284, 30 N. Y. Supp. 783; Corwin v. N. Y. & E. R. R. Co., 13 N. Y. 42.  