
    John D. Graham, Resp’t, v. The President, etc., of the Delaware and Hudson Canal Co., App’lts.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed December, 1887.)
    
    1. Railroads—Fences—Obligation to erect and maintain—Laws 1854, chap. 383, § 8;
    It is provided by Laws 1854, chap. 383, § 8, that 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. This plaintiff owned and used as a pasture the lot of land adjoining the defend-
    ant's railroad. There was a deep rock cut, through which the railroad was laid, along a portion of this pasture lot, the defendant did not erect or maintain a fence on the side of its road where this cut was. The plaintiff’s horse being in this lot fell down into this cut and was killed by the fall. Held, that the duty prescribed by statute was one which the defendant owed to the plaintiff and to the public.
    
      2. Same—Negligence—Failure to obey the command op statute, when IT CONSTITUTES NEGLIGENCE.
    The duty enjoined upon the defendant being for publicas well as private protection, its non-observance constituted negligence.
    8.'' Same—Recovery for damages occasioned by.
    The death of the horse of the plaintiff having occurred through the defendant’s negligence, and without any negligence on the part of the plaintiff, the defendant was liable therefor.
    
      Wm. H. Teft, for resp’t; Edwin Young, for app’lts.
   Landon, P. J.

The statute, chap. 282, § 8, Laws 1854, provides that “ 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. ” The plaintiff owned and used as a pasture, the lot of land adjoining the defendant’s railroad. There was a deep rock cut through which the railroad was laid, along a portion of this pasture lot. The defendant did not erect or maintain a fence on the side of its road where this cut was. The plaintiff’s horse being in the pasture lot, fell down into this cut and was killed by the fall. The defendant was guilty of negligence in not performing its statutory duty. Corwin v. New York and Erie R. R. Co., 13 N. Y., 53.

This duty it owed both to the plaintiff and to the public. To the public in the interest of the lives and property committed to its care. To the plaintiff in order to protect him in the enjoyment of his adjoining land and his horses and cattle thereon. The plaintiff in a proper case could invoke the aid of equity to enforce its performance, Jones v. Seligman (81 N. Y., 190); or obtain mandamus, People v. Garbutt (76 N. Y., 294); or maintain his action for damages if his freehold was rendered less valuable or he was •deprived of its use, because of defendant’s neglect to maintain the fences. Thomas v. Utica and B. R. R. R. Co., 97 N. Y., 245; Leggett v. Rome, W. and O. R. R. Co., 41 Hun, 80. These various remedies imply that the plaintiff as adjoining owner is entitled to full protection to both his land and cattle from any injury resulting from neglect to maintain the fences.

The form of the action may not be material,if the facts constituting it, are, as in this case, plainly stated. The form here adopted charges the defendant with negligence. The last two cases above cited assume that there is a contract obligation upon the part of the defendant to perform its statutory duty. But the duty enjoined upon the defendant being for public as well as private protection, there is also, upon familiar principles, an obligation independent of contract, having its foundation in the policy of the law, which for public ends, no less than for private advantage, requires its observance, and imputes negligence because of its nonobservance.

This negligence was the direct cause of the death of the plaintiff’s horse.

The jury found that the plaintiff was not guilty of contributory negligence. Within Shepard v. Buffalo, New York and Erie R. R. Co. (35 N. Y., 641), it would be difficult to impute contributory negligence in a case like this.

Thus, the plaintiff’s right to recover was established.

But the defendant relies upon the further provision of the statute above cited. It further provides, “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 damages which snail be done by the agents or engines of any such corporation to any cattle, horses, etc., thereon.” The defendant insists that it is only liable for damages done by its agents or engines, and cites Knight v. N. Y., L. E. and W. R. R. Co. (99 N. Y., 25). In this •case the plaintiff was not the owner or occupier of the premises adjoining the railroad and, therefore, the railroad was guilty of no negligence with respect to the fences between its road and his land, and since the plaintiff’s colt passed upon the railroad through a defective fence between the railroad and" some other owner, the plaintiff was entirely without right to relief except such as the statute provided, and as it provided none for his case he could not recover.

The defendant also cites cases to the effect that where the remedy is a statutory one, and a new right given, and specific relief prescribed for a violation of such right, the remedy is confined to that which the statute gives. Jessup v. Carnegie, 80 N. Y., 441, 456; Dudley v. Maher, 3d id., 9, 15; Smith v. Lockwood, 13 Barb., 209; Renwick v. Morris, 7 Hill, 575. Here no new remedy is given; the statute enjoins a new duty upon the railroad company, but the right which corresponds to that duty is left to be enforced by old remedies. Crandall v. Eldridge, decided by us at this term of the court, differs from this case only in the fact that it arose between the owners of adjoining farms, and is governed by the statute relating to division fences. There the defendant neglected his part of the division fences. The plaintiff’s colt passed from the plaintiffs land over this defective fence, fell into a natural morass upon the defendr ant’s lot and was drowned. The statute, respecting division fences, limits the recovery to injury done to the land and crops. But' for the statute the plaintiff’s colt would have been trespassing upon defendant’s lot. We held that the statute respecting division fences confers no rights and imposes no duties, except as between the owners of adjoining lands, the negligence with respect to their particular division fences does not concern the public, and hence gives no rights springing from a violation of a «public duty, and, therefore, the plaintiff was confined to the statutory relief, and could not recover.

But we pointed out that when the new duty enjoined by the statute is for the benefit of the public, as well as for persons holding certain specified relations to the party upon whom the duty is enjoined, the neglect of that duty gives the party injured all the relief due to him in either or both relations.

The cases are numerous which hold that the violation of a public statute is legal negligence, and the violation of a municipal ordinance is evidence of negligence. Van Norden v. Robinson, 45 Hun, 567, and cases there cited. It was at. one time contended that the only liability incurred by violation of an ordinance was the penalty prescribed in it. Brown v. Buffalo and S. L. R. R. Co., 22 N. Y., 191. But that doctrine did not long prevail.

It was soon perceived that every person who violates an express statute is a wrong doer, and, as such, is ex necessitate negligent, and if he has done the wrong with respect to an innocent person, the latter has his remedy for full mdemnity. Jetter v. N. Y. and H. R. R. Co., 2 Keyes, 154, 162.

Nor is it clear that the statute casts any new duty or liability upon the defendant. The legislature conferred the right to construct and operate railroads; and therewith and as a part of the legislation conferring the right, it enacted the statute in question to impose a duty regulating the right. The right and duty go together, and when the right is obtained the duty is imposed. The act is not a mere modification of the law respecting division fences. Corwin v. N. Y. and Erie R. R. Co., 13 N. Y., 42.

Judgment affirmed, with costs.

Potter and Parker, JJ., concur.  