
    (44 Misc. Rep. 345.)
    EVANS v. UTICA & M. VALLEY RY. CO.
    (Oneida County Court.
    July, 1904.)
    1. Street Railroads—Cattle Guards.
    Railroad Law (Laws 1892, p. 1390, c. 676) § 32, providing that every railroad corporation shall maintain cattle guards at road crossings, applies to a street surface railroad company incorporated under article 1 of the act (page 1382), and requires cattle guards where the track of such company crosses country roads.
    Appeal from Justice Court.
    Action by Griffith Evans, executor, against the Utica & Mohawk Valley Railway Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Kernan & Kernan, for appellant
    Lee & Senior, for respondent.
   DUNMORE, J.

This is an action for negligence. The defendant is a domestic railroad corporation, and at the time of the accident was operating a line of surface suburban railway between the cities of Rome and Utica. About ljá miles west of the village of Oriskany the defendant’s tracks cross a road forming what is known as “Kirley’s Crossing.” At the time of the accident the defendant’s road was fenced, but there were no cattle guards to prevent cattle from going upon the defendant’s tracks. A cow belonging to plaintiff’s testator went upon defendant’s tracks and was killed. Plaintiff recovered a verdict in justice’s court for $50. The only ground of negligence alleged is the failure of defendant to construct and maintain cattle guards as provided by section 32 of the Railroad Law (Laws 1892, p. 1390, c. 676). That section provides as follows:

- “Every railroad corporation, and any lessee or other person in possession of its road, shall, before the lines of its road are opened for use, and so soon as it has acquired the right of way for its roadway erect and thereafter maintain fences on the sides of its road of height and strength sufficient to prevent cattle, horses, sheep and hogs from going upon its road from the adjacent lands with farm crossings and openings with gates therein at such farm crossings whenever and wherever reasonably necessary for the use of the owners and occupants of the adjoining lands, and shall construct where not already done, and hereafter maintain, cattle guards at all road crossings, suitable and sufficient to prevent cattle, horses, sheep and hogs from going upon its railroad. So long as such fences are not made, or are not in good repair, the corporation, its lessee or other person in possession of its road, shall be liable for all damages done by their agents or engines or cars to any domestic animals thereon. When made and in good repair, they shall not be liable for any such damages, unless negligently or willfully done. A sufficient post and wire fence of requisite height shall be deemed a lawful fence within the provisions of this section, but barbed wire shall not be used in its construction. No railroad need be fenced, when not necessary to prevent horses, cattle, sheep and hogs from going upon its track from the adjoining lands.”

Defendant contends that it is a street surface railroad, and is governed by article 4, §§ 90-110, of the Railroad Law (Laws 1892, pp. 1399-1408, c. 676), and that section 32 of that law does not apply to street surface railroads. Concededly, the defendant is not incorporated under sections 90 to 110, because none of those sections relate to that subject. Street railroads must be incorporated under article, 1 of the Railroad Law. Hence street railroads cannot be organized and operated exclusively under article 4. If the general provisions of article 1 apply to street surface railroads, why should not' the general provisions of article 3, of which section 33 forms a part, also apply? The language of section 33 is broad enough to include both steam railroads and street railroads. The section begins, “Every railroad corporation,” etc. In sections 54 (Laws 1893, p. 1395, c. 676) and 60 (Laws 1897, p. 794, c. 754), which are not intended to apply to street railroads, the words “steam railroad corporation” and “steam surface railroads” are used, while in article 4, which does not apply to steam railroads, the expressions “street surface railroad” and “street railroad” are used. It would seem, therefore, to have been the intention of the Legislature, when it intended to include both classes of railroads, to use the expression, “every railroad corporation,” and, when it intended to include only one class to mention that class specifically. My inference, therefore, is that, if the Legislature had intended that section 33 of the Railroad Law should apply only to steam roads, it would have used the term “every steam railroad „ corporation,” instead of “every railroad corporation,” in framing that section. It has been frequently held that the object of that section is not merely to prevent loss to owners of horses and cattle, but also to protect passengers "upon trains and cars from accident. The statute should therefore be liberally construed, so as to effectuate the purpose of its framers, and to afford the public adequate protection. Dolan v. N. D. & C. R. R. Co., 120 N. Y. 571, 24 N. E. 824.

It was conceded upon the trial that defendant’s cars run from 35 to 40 miles an hour where the accident occurred. It would seem that passengers traveling upon street cars running at such a high rate of speed would be in greater danger from accident resulting from a collision of a car with an animal upon the track than would passengers upon steam cars in like cases. I can therefore see no good reason why, in construing the statute, section 33 should not be held applicable to street surface railroads.

As that is the only question raised upon this appeal the judgment should be affirmed, with costs.

Judgment affirmed, with costs.  