
    Klock et al. v. New York Cent. & H. R. R. Co.
    
      (Supreme Court, General Term, Third Department.
    
    December 28, 1891.)
    1. Railroad Companies—Dutt to Maintain Fences.
    Under Laws 1850, c. 140, as amended by Laws 1854, c. 383, § 8, requiring railroad companies to maintain fences “ on the sides of their roads ” under penalty of liability for stock killed on the track, but providing that the company shall not be required to fence “the sides of its road except when such fence is necessary to prevent” stock getting on the track from the adjoining lands, the company is required to fence along the sides of its tracks, even though it owns the adjoining lands, unless there is some other physical barrier, either artificial or natural, on which it can safely rely as a substitute for such fence. Kelver v. Railroad Co., 37 N. E. Rep. 553, 136 N. Y. 365, followed. Potter v. Railroad Co., (Sup.) 15 N. Y. Supp. 13, distinguished.
    
      2. Same—Natural Barrier—Province op Jury.
    The question whether the Mohawk river, a navigable stream, is a natural barrier between a railroad and an island lying in such river, used by an adjoining proprietor for pasturing cattle, which will relieve the road from the liability to fence, is one of fact for the jury.
    Appeal from circuit court, Montgomery county.
    Action by Amos Klock and others against the New York Central & Hudson River Railroad Company to recover damages for stock killed on defendant’s track. Plaintiffs appeal from a judgment of nonsuit.
    Reversed.
    Argued before Learned, P. J., and Mayham, J.
    
      Q. 8. Klock, for appellants. O. I). Prescott, for respondent.
   Mayham, J.

Prior to September 3, 1873, the plaintiff Klock was the owner and occupant of a farm on the north side of the Mohawk river, in the county of Montgomery, through which the defendant’s railroad, road-way, and track passed. On that day Klock conveyed to the defendant a strip of land lying between the road-way and the river, in an oblong form, of about 7¿ acres. Previous to such conveyance the defendant had maintained a farm crossing at grade across the railroad for the convenience of the Klock farm. In the deed from Klock to the defendant it was provided that the defendant should maintain the crossing over its road to enable the defendant’s grantor to pass to and from an island of about eight acres, owned by him, in the river, and lying opposite the land granted to the defendant. The width of the land conveyed to the defendant from the farm crossing to the northerly bank of the river was a distance of about 150 to 175 feet, and the distance from the northerly bank of the river, opposite the farm crossing, to the isl- and, was about 350 feet, so that the distance from the crossing to the island was about 525 feet; and the land conveyed by Klock to the defendant was bounded on the south by the north shore of the river, between which and the railroad the defendant maintained no fence, but on the north side of the railroad, and between it and the Klock farm, a fence was maintained. East and west of the farm crossing and at the crossing there was a gate. The isl- and was used for meadow in the summer and pasturage in the fall, after the hay crop was harvested. On the morning of the 23d of September the plaintiffs, by their servants, drove 35 cows belonging to the plaintiffs across this farm crossing and through the north branch of the river to the island; and at about 4 o’clock in the afternoon of that day one of the plaintiff’s employe opened the gate on the north side of the railroad, and passed down to the river, and, standing upon its north bank, on the defendant’s land, called the cows, and they came from the island; and, as 12 of the cows came upon the north bank of the river on defendant’s land, he was notified of an approaching express train, coming from the west on defendant’s railroad, when he ran to the railroad, followed by the cows, where he tried to signal the train, and also to prevent the cows from going upon the track, but failed in accomplishing either, and 4 of the cows passed upon the track, and were hit by the locomotive and killed. On the trial, at the conclusion of the plaintiff’s evidence establishing these facts, the defendant moved the court to nonsuit the plaintiffs. The plaintiffs insisted upon submitting to the jury the question of defendant’s negligence; also the freedom of plaintiffs from contributory negligence; and also the question of defendant’s liability for not constructing a fence as required by the statute. The court declined to submit the question to the jury, and granted a nonsuit.

The principal, and, perhaps, the controlling, question in this case is whether the defendant is liable for failing to fence its railroad track as required under the provisions of the general railroad act, (chapter 140 of Laws of 1850, as amended by section 8 of chapter 282 of the Laws of 1854.) That section provides as follows; “Every railroad corporation * * * shall * * * erect, and thereafter maintain, fences on the sides of their roads, of the height and strength of a division fence, as required by law, with openings or gates or bars therein at the farm crossings of such railroad for the use of the proprietors of the lands adjoining such railroad. * * * And so long as such fences * * * shall not be made, and when not in good repair, such railroad corporation and its agents shall be liable for damage which shall be done by the agents or engines of any such corporations to any cattle, horses, sheep, or hogs thereon. * * * But no railroad corporation shall be required to fence the sides of its road except when such fence is necessary to prevent horses, sheep, and hogs from getting on the track of the railroad from the lands adjoining the same. ” Two questions may arise in construing this statute as applicable to this case: First. Is the defendant, by this statute, required to fence its railroad track against the adjoining land of the company, so that the cattle trespassing upon it, and straying thence upon the railroad track, where they are injured, shall be paid for by the company ? Second. Is the railroad company liable for not maintaining exterior line fences along its land, not used for railroad purposes, but not divided from its railroad by fences along its track? The language employed by the legislature in imposing this obligation on railroad companies seems clearly to indicate where the fence required by the statute shall be located and maintained: “They shall * * * erect and thereafter maintain fences on the sides of their road,” etc. If that language is strictly followed, a company could not excuse itself by purchasing a large tract of land lying along its track, and maintaining an exterior line of such tract, and at long distance therefrom a division fence between it and adjacent owners. It is true that, if such exterior fence furnished a complete barrier to any approach to the track by the animals named in the statute, the company would be excused from constructing a fence along the track under the concluding portion of the eighth section above quoted. In Kevler v. Railroad Co., (Super. Buff.) 12 N. Y. Supp. 723, it was held that the liability of the railroad company for animals killed by the cars where the railroad was not fenced upon the sides of the tracks did not arise out of any negligence of the company, but out of the failure to comply with the provisions of the statute. This decision was affirmed by the court of appeals in 126 N. Y. 365, 27 N. E. Rep. 553. In that case the cattle of the plaintiff strayed from his farm across the unfenced railroad of another company, and upon the railroad of the defendant, which was also without fences along the sides of its track; and the defendant was held to be liable for the loss suffered by reason of injury to the cattle. In this case the court bold that, although the cattle, after leaving plaintiff’s premises, passed over other intervening lands before reaching the defendant’s railroad track, still, as there was no intervening barrier to prevent them from reaching the defendant’s railroad, the defendant was not excused from the statutory obligation to maintain a fence along the side of its track. To the same effect is Shepherd v. Railroad Co., 35 N. Y. 641. From this examination of the wording of the statute, and the decisions construing the same, we are led to the conclusion that the first inquiry above propounded must be answered in the affirmative, and that the defendant in this case was required, in order to protect itself from the consequences of injury to cattle, to construct fences along the sides of its tracks, even though the company owns the adjoining lands, unless there is some other physical barrier, either artificial or natural, upon which they can safely rely as a substitute for such fence. See, also, Rhodes v. Railroad Co., 5 Hun, 344, and Brady v. Railroad Co., 1 Hun, 378. This conclusion substantially answers the second question propounded above in the negative, that a railroad company is not bound to maintain an exterior line fence between its lands, outside of, but adjoining, its railroad lands, and the lands of adjoining owners. Unless the manner in which the plaintiff used this crossing, or the particular circumstances of this case, take it out of the general rule, and, as matter of law, exonerate the defendant from liability, the case should have been given to the jury.

But it is insisted on the part of the defendant that the Mohawk river is a sufficient natural barrier between the plaintiff’s island and the railroad to relieve the defendant from its statutory duty of maintaining a fence along the side of the railroad track as to these plaintiffs, and that this case comes within the principle of the rule laid down in Schermerhorn v. Railroad Co., 38 N. Y. 103, and Dolan v. Railroad Co., 120 N. Y. 571, 24 N. E. Rep. 824. In Schermerhom v. Railroad Co., supra, it was held that the railroad company was not bound to fence its road along the banks of the river, hr where it runs through channels of the river, separated from the river by islands. But that decision seems to have been put upon the ground that by the charter of the railroad corporation, (section 24 of chapter 216, Laws 1846,) which relieves the company from any obligation to maintain a fence “ when their railroad is constructed in the river, the company is .exonerated,” In Dolan v. Railroad Co., supra, the plaintiff’s team was driven by his servant on a narrow strip of land between a mill and the railroad track, and the team was standing partly on this strip and partly on the land of the railroad company, and was left by the driver, when it escaped onto the railroad track, and was hit by a train of cars and killed. The track was fenced along the railroad either way from the mill, and the distance from the platform of the mill to the lands of the railroad was 4 feet and 10 inches; and the majority of the court held that under the last clause of section 8 of chapter 282 of Laws of 1854 it was error for the trial court to refuse to hold that the railroad company was not required to fence its road at this point, upon the theory that the mill and the fences on either side along the road constituted a sufficient barrier to prevent animals from going upon the track, and brought the case within the provisions of the above section of the statute, which is as follows: “But no railroad corporation shall be required to fence the sides of its road except when such fence is necessary to protect horses, sheep, cattle, and hogs from going upon the track of the railroad from the lands adjoining the same.” But it is further urged by the defendant that the Mohawk river is a navigable river, and was a sufficient natural barrier, and that the court will take judicial notice of that fact. In People v. Canal Appraisers, 33 N. Y. 461, Davies, J., in delivering the opinion of the court, says: “It is assumed, and may be taken as conceded, that the Mohawk river is one of the navigable rivers of the state, and perhaps the court will take judicial notice that it is so.” In support of respondent’s contention it is urged that, as division fences are not required by statute on the line of navigable rivers, between riparian owners, by analogy they cannot be required along the side of railroad tracks when a navigable river is so located as to constitute a barrier to prevent cattle from going upon railroads. That does not necessarily follow. Eo such exception is made in the statute. In Shepherd v. Railroad Co., 35 N. Y. 646, Beckham, J., says: “The statute quoted was probably aimed at rivers or lakes through whose borders railroads may run, and where fences would be unnecessary; or, in other cases, when high rocks or other obstructions would render it unnecessary to fence against the invasion of cattle. ” In the case at bar we think the court was not authorized as matter of law to determine that such natural obstructions existed as to render it unnecessary for the defendant to construct the statutory fence along the sides of its road. That was a fact to be determined by the jury, under proper instructions from the court. This case differs from the case of Potter v. Railroad Co., (Sup.) 15 N. Y. Supp. 12. In that case the railroad company owned land adjoining its tracks, between which and the track there was no road fence, and the lessee tethered his horse upon it. The horse broke loose, wandered upon the track, and was injured by being frightened by one of the defendant’s trains. ’The question arose between the tenant of the defendant who leased the defendant’s land and defendant when there was no road fence dividing it from the track. No principle, under such circumstances, would, as between the lessor and lessee, make the former liable to the latter. We do not see that this case conflicts with the cases above cited, but depends upon an entirely different principle. On the whole, we think this case should have been submitted to the jury, and that the nonsuit was error. Judgment reversed, new trial ordered, costs to abide event.  