
    Poler v. The New-York Central Railroad Company
    A written contract between a railroad company and the owner of a farm through which it constructed its road obliged the company to construct and maintain good and sufficient fences on each side of the track, and also two crossings for teams; Held, that the omission, in the contract, of any provisions as to gates or bars at the crossings, did not relieve the company from its statutory obligation to maintain them, as required by the general railroad act.
    While it is the primary duty of a railroad company to discover and repair defects in fences, gates, &c., which it is bound to maintain, it is the duty of an adjoining proprietor interested in their security to give notice to the company when a defect has come to his knowledge. Which of the parties must be charged with negligence must ordinarily be left to the discretion of the jury upon the circumstances of the particular case.
    the gate constructed by the company at one of the crossings having got out of repair, and liable, to be blown open, the owner of the farm, without giving notice thereof to the company, took measures to secure the gate, which proved ineffectual; his cattle escaped through it and were killed upon the railroad. There was evidence of some vigilance on the part of the company in searching for such defects, and that this escaped observation; Held, that whether the mode adopted for securing the gate was reasonably judicious, and whether the plaintiff was culpably negligent in suffering his cattle to remain in a field insufficiently fenced from the railroad, or in having failed to give notice to the company of the defect, were questions of fait properly submitted to the jury.
    
      Appeal from the Supreme Court. The action was for negligence of the defendant, in not maintaining proper gates in the fences along the line of its road through the plaintiff’s farm, and in not making cattle guards at the farm crossings, whereby the plaintiff’s horses strayed upon the track and were killed. The trial was at the Orleans circuit, before Mr. Justice Bowen and a jury. The plaintiff proved that the defendant, on July 6, 1853, succeeded to the property rights and obligations of the Rochester, Lockport and Niagara Falls Railroad Company, and after that day ran its ears upon the road which the latter had constructed. The plaintiff’s grantor of the farm occupied by him at the time of the accident, in 1851, conveyed to the last named corporation a strip of land through the farm for its track. A part of the consideration was stated in the deed to be that the company should “ construct and maintain two crossings for teams over said railroad, one of which is to be provided with a cattle guard,” and should also “ construct a good and sufficient fence on each side ” of the strip granted, and maintain the same. The track ran through the farm from east to west. There were two crossings: one near the east part of the farm, where the plaintiff’s pasture lands were, and which was shown to be most used; the other further west. There were no cattle guards, at the time of the accident, at either of the crossings. There were two gates at the east crossing, one on each side of the road, and the crossing was fenced on each side up to the track. The defendant’s counsel objected to proof offered of the condition of the gate on the south side, on the ground that neither the defendant nor the company to which it had succeeded were bound by law or by contract to construct or maintain it; and the evidence was admitted under his exception. The gate was shown to be too short for the opening, so that when the wind blew, its motion would work the iron hook, with which it was fastened, loose and out of the staple. It had been in that condition two or three weeks before the accident; the plaintiff knew the fact, and had directed the gate to he fastened by putting a rail against it on the side next the track. On the day of the accident the wind blew in such a direction as the evidence tended to show, would blow the gate upon the railroad. Three horses escaped through the gate from the lot in which they were pastured. Two of them were killed and one injured, by a train passing from east to west, near the west line of the plaintiff’s farm. When the plaintiff rested, the defendant moved for a nonsuit, on the ground that the proof showed negligence on the part of the plaintiff and none on the part of the defendant. The court declined to nonsuit; and the defendant then gave evidence tending to show that thé gate in question had been well and securely constructed in 1852, about sixteen months before the accident, by the railroad company, and that its subsequent defective condition had escaped the observation of an agent of the defendant, who passed along the road twice each day for the purpose of examining the track and fences. The defendant’s counsel requested the judge to charge the jury that if the gate was defective and liable to be blown open, and the plaintiff knew the fact, it was negligence to allow the horses to remain in the lot on the day of the accident without securing the gate or giving notice of the defect to the defendant. The judge declining so to charge, defendant’s counsel took an exception, and further requested the judge to charge that if the plaintiff, with such knowledge, undertook to secure it, but secured it in an improper and careless manner, whereby it was blown open by the wind or crowded open by the plaintiff’s horses, and the horses thereby strayed upon the railroad, it was such negligence on his part as to defeat a recovery. The judge declined so to charge, and the defendant’s counsel excepted. The charge was, that if the plaintiff’s own negligence had tended to produce the injury, he could not recover; that if, in the- exercise of ordinary care and prudence, the plaintiff had reason to suppose there was danger of the horses getting upon the track, it was his duty to have taken his horses from the lot or otherwise secured them, and to have required the defendant to pay his damages, if any, for being deprived of the use of his land by reason of the defect in the gate, or himself repair the defect; that it was for the jury to find, from the evidence, whether he had such reason, and whether he used such ordinary care. The defendant’s counsel excepted to the submission to the jury of the questions, whether the plaintiff had reason to apprehend danger, and whether he used ordinary care. Other exceptions to the charge were taken, which sufficiently appear in the following opinion. The jury found a verdict for the plaintiff, upon which judgment was rendered by the Supreme Court, at general term in the seventh district, where the exceptions were ordered to be heard in the first instance. The defendant appealed to this court.
    
      John II. Reynolds, for the appellant.
    
      Sanford E. Church, for the respondent.
   Selden, J.

That the defendants have succeeded to the obligations and duties as well as the rights of the Rochester, Lockport and Niagara Falls Railroad Company, including those which arise upon contract as well as those imposed by statute, is not denied; but it is insisted in their behalf that they are exempted from the obligation, under section forty-four of the general railroad act of 1850, to maintain gates or bars at the crossings upon the plaintiff’s farm, by virtue of the deed from Simon Poler to the Rochester, Lock-port and Niagara Falls Railroad Company, which says nothing on the subject of gates or bars, but contains a provision that the grantees shall “ construct a good and sufficient fence on each side” of the premises conveyed. Construing this deed according to the maxim expressio unius exclusio esi alter ins, the defendants claim that it relieves them from the duty of constructing or maintaining gates.

It cannot, however, be fairly inferred from the deed that it was intended to exempt the railroad company from any portion of its statutory obligations. The deed provides for two crossings; and wherever there were crossings gates or bars would be necessary. When erected, those gates would form a part of the fence; and taking the provision as to fences, in connection with that in respect to crossings, .the fair inference, I think, is, that the fences were to be so constructed as to make the crossings available. At all events, the contrary is not sufficiently clear to override a positive statute

The main questions arise upon the charge of the judge, and upon his refusal to charge as requested.

It is insisted that the judge should have decided the question of negligence on the part of the plaintiff as a matter of law, and not have submitted it to the jury as a question of fact. Although in most cases it falls peculiarly within the province of the jury to determine questions of negli gence, cases may nevertheless arise, in which the proof is so clear and conclusive, that it would be the duty of the court to instruct the jury that negligence was established. It can scarcely be said, however, that the present is such a case. The plaintiff had from time to time instructed the persons in his employment to secure the gates, and the manner in which he directed this to be done was described by the witnesses. Whether the mode adopted was reasonably judicious, and one likely to be effectual for the time being, was a question concerning which the jury may well be supposed to have been more competent to judge than the court. At all events, the negative of the question does not appear to me so clear as to have called upon the court to decide, as matter of law, that the plaintiff was culpably negligent in this respect.

Again, it was not shown upon the trial that the plaintiff had given notice to the defendants of the condition of the gate, and this also is relied upon as proof of negligence. There is no doubt that although the statute imposes upon the railroad company the absolute duty of maintaining fences, gates, &c., yet a duty in this respect also devolves upon the proprietors along the road. They have no right quietly to fold their arms and voluntarily to permit their cattle to stray upon the railroad track, through the known insufficiency of the fences which the corporation are bound to maintain. As it would be impracticable for the railroad company to keep a constant watch of every gate and every rod of fence along the line of its road, it is but reasonable to require of the proprietors, when defects have actually come to their knowledge, to make suitable efforts to apprise the company of such defects. In enforcing this rule, however, upon proprietors, care should be taken not to exempt the company, upon which the primary duty rests, from its due share of responsibility. It will be found impossible to define with precision the relative obligations of the parties in this respect, and it must result in most cases in a question to be addressed to the sound discretion of a jury. While I am not prepared to say that the evidence in this case might not have warranted the jury in finding that the plaintiff had been guilty of some degree of negligence, it was nevertheless, as I think, properly submitted to them with just and proper instructions, and their finding upon the subject must be regarded as decisive.

The defendants’ counsel also objects to that portion of the charge as erroneous, in which the jury were instructed that if they should find from the evidence that the plaintiff was free from negligence, and that the injury was occasioned by the neglect of the defendants to construct cattle guards, the defendants were liable. The nature of cattle guards, although not particularly shown by the evidence, is a matter of such familiar observation and knowledge that it may be taken notice of by the court without proof. They are used, as is well known, where ways either public or private cross a railroad track, to prevent horses and other animals, passing over the road, from straying in either direction longitudinally upon the track; and if properly constructed are entirely effectual for that purpose.

It is shown in this case that the crossing at which the horses escaped is built with fences on each side up to the track. If, therefore, it had been provided with suitable cattle guards, which would have protected the space between the rails, it seems entirely clear that the accident could never have happened; because, although the horses might have escaped through the gate, they could only have crossed directly over the track, but could not have passed in either direction along it. I am unable, therefore, to understand the defendants’ counsel when they say that the omission to construct cattle guards could not have contributed to the injury, unless they assume that such guards are constructed with reference to cattle only, and are entirely ineffectual to prevent horses from getting upon the track, which I do not suppose to be the case.

It may be said that the defendants were to construct cattle guards at only one of the crossings; that such guards at the west crossing would have fulfilled their agreement, and that these, if made, would not have prevented the horses from straying upon the track. The proof shows that the horses were killed upon the extreme western boundaries of the plaintiff’s farm; so near the line, indeed, that one of them, immediately after the accident, lay upon the premises of an adjoining proprietor. They must therefore have passed the west crossing in their progress along the track. This they could not have done had proper cattle guards been constructed at that crossing; and from the known habits of animals under such circumstances it is perhaps fair to presume that, upon encountering the obstruction of the cattle guards, they would have turned laterally from the track. At all events, the accident could not have happened at the place where it actually occurred.

But I entertain no doubt, from the manner of the occupation of the plaintiff’s farm, as disclosed by the proof, that by a fair construction of the deed the defendants were bound to make the cattle guards at the eastern crossing. The pasture lands were upon that part of the farm, and that was the crossing most used. The other crossing was between cultivated fields, and comparatively but little used. This shows why cattle guards were required at but one of the crossings, and explains the meaning and intention of the parties. The charge, therefore, in respect to the omission to make cattle guards, was, in my view, strictly correct, and plainly called for by the facts of the case.

I think the judge was right, also, in refusing to charge as requested. He had already instructed the jury, in very explicit terms, that the plaintiff must be free from negligence ; that if his own negligence had tended to produce the injury he could not recover, and that if, in the exercise of ordinary care and prudence, he had reason to suppose there was danger of the horses getting on the track, it was his duty to have taken them away or secured them. This, I think, was enough on that subject. To have charged the jury as requested would have entirely taken from them the question of negligence, which the judge would not have been justified in doing. How far it is necessary and proper for the judge to refer to and comment upon the evidence, in his charge to the jury, is a question of discretion.

The judgment of the Supreme Court should be affirmed.

Comstock and Shankland, Js., were absent; Paige, J., expressed no opinion; all the other judges concurring,

Judgment affirmed.  