
    Frank Shepard, Plaintiff, v. Pennsylvania Railroad Company, Defendant.
    (Supreme Court, Livingston Trial Term,
    June, 1914.)
    Railroads — duty to fence right of way — agreement between railroad and adjoining owner does not affect claim for damages by third party ignorant of such agreement.
    The statutory duty of a railroad company to fence its right of way is an absolute one, and while any covenant or agreement made with an adjoining owner would be a defense as to him it is not as to third persons not claiming under him.
    Plaintiff’s horses straying from his pasture proceeded along the public highway on to the farm of another and from a field thereon went upon the unfenced right of way of defendant, a railroad company, where one was killed and another injured by one of its trains. Held, that an agreement between the railroad company and an adjoining owner that the railroad should not be required to fence its right of way could not affect a claim for damages by plaintiff who was ignorant of any such agreement.
    Motion by defendant for a new trial.
    Frank K. Cook, for plaintiff.
    Frank Bumsey, for defendant.
   Clark, J.

Plaintiff’s horses strayed from a pasture where they were kept by the owner, proceeded along the public highway on to the farm of the Wadsworth estate in Livingston county, and from a field on that farm they went on to the right of way of defendant, where one was killed and another injured by one of its trains.

Defendant did not have its right of way fenced, and sought to excuse that fact by endeavoring to prove a verbal agreement made with Mr. Wadsworth (now deceased), whereby it was claimed the railroad company was not required to build such fence. That evidence was excluded for the reason that while such an agreement would be a perfect defense as against any- claim made by Mr. Wadsworth or his successors in title for damages to any of their stock which might stray on the railroad right of way and be killed by its trains, that agreement could not affect a claim by an outside party who had suffered damages and who was ignorant of any such agreement.

The duty of the railroad company to fence its right of way is a statutory one. Railroad Law, § 52.

Any covenant or agreement made with an adjoining-owner would be a defense as to him, but not to third persons not claiming under him. Corwin v. N. Y. & E. R. Co., 13 N. Y. 42; Satterly v. Erie R. R. Co., 113 App. Div. 462.

While at common law a railroad company is not liable for injuries to estrays passing upon its lands unless caused by its malicious acts, I think the statute requiring right of way fences is an absolute one. Bateman v. Rutland R. Co., 126 App. Div. 511.

Any agreement with an adjoining* owner to the effect that such fences might be omitted, while being a good defense in an action brought by an adjoining owner, or his successor in title, for damages to live stock injured by the railroad company, where such stock had strayed upon its right of way from an adjoining field, would not be effectual as against a third party whose stock had been killed under the circumstances as estaba fished in the case at bar, and who was in ignorance of the agreement sought to be proved in this action. Corwin v. N. Y. & E. R. Co., supra; followed in Jimerson v. Erie R. Co., 203 N. Y. 518, 521.

Motion for a new trial must be denied.

Ordered accordingly.  