
    Owen Donegan, Resp’t, v. Joel B. Erhardt, as Receiver of the New York City and Northern Railroad Company, App’lt.
    
      (New York Superior Court, General Term,
    
    
      Filed May 7, 1888.)
    
    Railroads—Failure to maintain fences and cattle guards—Section 2, R. S., (6th ed.), part 1, chap.- 18, § 67—Accidents in consequence of —What actions can be maintained.
    The plaintiff was in the employ of the defendant. A train on which he was working ran into a horse on the track. The plaintiff was thrown from the train and injured. It was claimed that the negligence of the company was established by the proof that fences and cattle guards were not maintained, which neglect permitted the horse to go upon the track. Held, that the statute (§ 67, part 1, chap. 18; 2 R. S., 6th ed.), prescribed the liability of the railroad company for failure to maintain fences and cattle guards, and that the only actions which could be maintained under the statute were those therein prescribed. And that the statute created no duty in relation to the plaintiff.
    Appeal by defendants from a judgment entered upon the verdict of a jury, and from an order denying a motion for a new trial, made upon the minutes.
    
      George H. Adams, for app’lt; Hector M. Hitchings, for resp’t.
   Segwick, J.

The action was for damages for personal injury of the plaintiff.

The plaintiff, at the time of the accident, was a brakes man employed by the defendant, who as a receiver, was operating a railroad in this state. He was upon a train in the course of his employment, when it was thrown from the track, by running against a horse. The plaintiff was thrown from the car on which he was, and severely hurt.

It was proved as the jury found, that the railroad company had not maintained fences on the sides of its roads or sufficient cattle-guards as required by the statute that will be referred to, and that the horse had gone upon the track over places, where there should have been sufficient fences and cattle-guards.

It was claimed on the trial by plaintiff, that not maintaining fences'and cattle-guards was a neglect on the part of the company, which permitted the horse to go upon the track and that the horse’s being there was the occasion of the train being thrown from the track.

On the hearing of the appeal it was not argued whether or not, if there was a neglect on the part of the company, the accident was the proximate or remote effect of such neglect.

The statute (sec. 67, part 1, chap. 18, 2 R. S., [6th ed.]) after declaring that railroad companies shall erect and maintain fences and cattle-guards, proceeds as follows: “ and so long as such fences and cattle-guards shall not be made and_ when not in good repair, such railroad corporation and its agents shall be liable for damages which shall be done, etc., to any cattle, horses, etc., thereon.”

The defendant claimed that as before the statute, the law had not made it the duty of the company to do the things afterwards required by the statute, after the statute the only actions upon it were those described by the statute.

I am of opinion that the position of defendants was valid. It is sustained by the principle that where a statute creates a right which did not exist before and prescribes the remedy for a violation of it, that remedy must be pursued. Stafford v. Ingersoll, 3 Hill, 41; Almy v. Harris 5 Johns., 175; Langlois v. Buffalo R. R., 19 Barb., 364; Knight v. N. Y., L. E. and W. R. R., 99 N. Y., 25.

The plaintiff assumes that the statute created a duty in relation to him. That assumption is negatived by the statute specifying what the consequences of a violation are to be.

This case is not like instances of a neglect which is a public offense, to the commission of which a penalty is attached. In such cases, where the duty is to the public, it has been argued that any one especially injured may have an action. It is not necessary to examine such cases. Nor is it like cases, where a neglect to do the things specified by the statute was actionable before the statute was passed; for example, the neglect involved in running at an undue rate.

There are cases in which courts have said that the statute was passed to protect the public and travelers. It will be observed that these cases were upon, the statute, and the court ascertained the nature of the action given by it, or what corporations were liable to such action. It was held that foreign corporations, or domestic corporations, running-upon leased tracks, were liable, or that liability existed for any cattle destroyed, even if they had not come from adjoining land. The result was a construction of the statute itself from considerations in respect of the public or travelers. This construction made the statute liberal, and, perhaps, wider than it would have been made except for these considerations. There was no attention to anything but the statute liability as expressed. It is consistent with these cases to hold that the policy, or practical object of the legislature, were intended to be guarded by the action expressly given.

The opinion of Judge Denio, Corwin v. The N. Y. and Erie R. R. (13 N. Y., 53), said broadly that he was of opinion that the “ statute imposes a public duty upon the railroad corporation, for a violation of which they are subject to indictment, whether individual interests are affected or not. Having imposed this general and public duty, the legislature has not proceeded to declare some of the consequences of its omission.” The case only concerned these declared consequences, and liability was affirmed because of the expressions of the statute, and not because of any general duty arising from the earlier part of the section.

For these reasons I am of opinion that the complaint should have been dismissed at the trial.

Judgment reversed, and new trial granted with costs to abide the event.

Freedman and O’Gorman, JJ., concur.  