
    (72 Hun, 469.)
    FRENCH v. WESTERN N. Y. & P. R. CO.
    (Supreme Court, General Term, Fifth Department.
    October 20, 1893.)
    Railroad Companies—Failure to Fence Track.
    Where plaintiff’s horse, while at pasture on the land of a third person adjoining defendant’s railroad track, goes on the track at a point where defendant has neglected to maintain a fence, and is injured, defendant is liable therefor, since its duty to adjoining landowners to fence its track inures to the benefit of persons who acquire from such landowners the right to use their land. Graham v. Canal Co., 46 Hun, 386, followed.
    Appeal from Cattaraugus county court.
    Action by Thomas O. French against the Western New York & Pennsylvania Railroad Company. From a judgment of the county court affirming the judgment of a justice’s court, defendant appeals.
    Affirmed.
    Argued before DWIGHT, P. J., and LEWIS and HAIGHT, JJ„
    Cary, Rumsey & Hastings, for appellant.
    M. B. Jewell, for respondent.
   DWIGHT, P. J.

The action was to recover for injuries to the plaintiff’s horse, caused by his falling through a bridge over the ditch by the side of the defendant’s road, adjacent to the farm of one Davis. The horse was pastured on the Davis farm, and went onto the railroad land at a point where the fence was wanting. The railroad hands had taken the planks off from the bridge for the purpose of repairs, and the horse, coming upon it, fell between the stringers. The case is, in principle, precisely like that of Graham v. Canal Co., 46 Hun, 386, in which our brethren in the third department sustained a judgment in favor of a plaintiff, who lost his horse by a fall over the edge of a deep cut, in which the defendant’s track was laid, through the plaintiff’s field, and which was unprotected by a fence. In that case it was held, in an opinion by Landon, J., that the defendant was guilty of negligence in not performing its statutory duty to fence its track, (citing Corwin v. Railroad Co., 13 N. Y. 53,) and was liable to any party to whom that obligation was directly and individually due, for any loss or injury resulting from its neglect, (citing Thomas v. Railroad Co., 97 N. Y. 245; Leggett v. Railroad Co., 41 Hun, 80; and Jetter v. Railroad Co., *41 37. Y. 154, 162.) In this case the obligation was due to the owner of the Davis farm, and to persons deriving from him the right to use his fields for the purpose of pasture. The opinion to which we refer also makes clear the distinction between that case, and equally between this case, and the case of Knight v. Railroad Co., 99 N. Y. 25, 1 N. E. Rep. 108, upon which the defendant here mainly relies. The distinction is that in the Case of Knight there was no neglect on the part of the defendant of any duty which it owed to the plaintiff. The colt, which was killed by falling through a bridge on the track, was astray on the highway, and gained access to the defendant’s lands through the lands of another proprietor. The doctrine of that case was therefore not in any manner inconsistent with the judgment in this case. In neither case, it is true, was the damage inflicted in the manner described by the statute, viz. by the agents or engines of the defendant, but in this case it resulted from the neglect of a statutory obligation due to the plaintiff, while in the other case no such obligation existed. We are disposed to concur in the reasoning and conclusion in the Case of Graham, supra, and consequently to affirm the judgment here appealed from. Judgment of the county court of Cattaraugus county appealed from affirmed, with costs. All concur.  