
    Harley S. Bateman, Appellant, v. The Rutland Railroad Company, Respondent.
    Third Department,
    May 6, 1908.
    ¡Railroad—negligence—injury to estrays — statutes construed.
    At common law a railroad company is not liable for in j ury to estrays which go upon its lands, unless caused by its reckless, wanton, or malicious acts.
    Although the common-law rule was changed on the enactment of section 8 of chapter 282 of the Laws of 1854, imposing a liability on railroads for negligence in failing to keep cattle guards in repair, the common law was again made operative on the enactment of chapter 676 of the Laws of 1892, amending section 32 of the Railroad Law, for said amendment only charged railroads with liability for negligence in maintaining fences and omitted the former provision making it negligence to fail to keep cattle guards in repair.
    Appeal by the plaintiff, Harley S. Bateman, from an order of the Supreme Court, made at the Clinton Trial Term and entered in the office of the cleric of the county of Clinton on the 24th day of Hay, 1907, setting aside the verdict of a jury in favor of the plaintiff and granting a new trial.
    
      Wilmer H. Dunn, for the appellant.
    
      John P. Badger, for the respondent.
   Kellogg, J.:

The plaintiff’s colts and cattle were estrays upon the highway and entered upon the defendant’s track over an alleged defective cattle guard and were in jured by a passing train, and the plaintiff had a verdict for the damages thus sustained, which verdict was set aside by the trial judge.

At the common law, where estrays upon the highway go upon the railroad land and are injured, the company is not responsible for their injury unless it occurred through its reckless, wanton or malicious acts. (Tonawanda R. R. Co. v. Munger, 5 Den. 255; Boyle v. New York, Lake Erie & Western R. R. Co., 115 N. Y. 636 ; S. C., 39 Hun, 171.)

Section 8 of chapter 222 of the Laws of 1854 required railroad companies to fence their track and maintain sufficient cattle guards, and provided that so long as such fences and cattle guards shall not be made, and when not in good repair, such railroad corporation and its agents shall be liable for damages which shall be done by the agents or engines of any such corporation to any cattle, horses, sheep or hogs thereon; and when such fences and guards shall have been duly made, and shall be kept in good repair, such railroad corporation shall not be liable for any such damages, unless negligently or wilfully done.” "

It is evident that this statute changed the common-law rule and made the company liable for an injury by its agents or engines to estrays from the highway over defective cattle guards. The duty to maintain the cattle guards is absolute, and the law provided the liability for the damages, and it was, therefore, immaterial whether the' cattle were trespassers upon the defendant’s track or not. Section 32 of the Railroad Law, as amended by chapter 6/T6 of the Laws of 1892, is a practical re-enactment of the provision above cited, and while it requires the maintenance of proper cattle guards has omitted from the provisions above quoted the words “ cattle guards,” so that the statute is silent as to whether the company is or is not liable for an injury done to cattle passing over defective cattle guards. The appellant claims that the change in the statute has not changed the law and that the company is still liable. The respondent contends that the amended statute leaves the liability of the parties as it existed at common law.

In Knight v. N. Y., L. E. & W. R. R. Co. (99 N. Y. 25) the plaintiff’s colt went from the highway upon adjoining lands not belonging to the plaintiff and from thence through the defective fence upon the railroad track, and was injured by falling through a bridge designed only for the passage of trains, and it was held under the law of 1854, above referred to, that the defendant was not liable, the colt being a trespasser upon its property and .the statute only providing liability where the injury was committed by the engines or agents of the defendant, and -did not cover any other injury received upon the defendant’s premises, and the rights of the parties were, therefore, to be determined according to the common law and plaintiff could not recover, as it was his duty to restrain his domestic animals.

In Donnegan v. Erhardt (119 N. Y. 468) the plaintiff, in 1881, while in the defendant’s employ as brake man, was injured by his train coming in collision in the night time with a horse upon the, railroad track, the horse having come upon the track through a fence negligently maintained by the railroad company, and it was held that the duty to maintain the fence was absolute, and that while the statute provided that if the fence was not maintained the company should be liable to the owner of domestic animals for the injuries received, it did not exempt the defendant from liability on account of its breach of duty to maintain a proper fence, the duty to maintain the fence being absolute and the plaintiff having suffered injury on account of its non-performance of that duty, the court saying (at p. 474): “ The sole consequence of an omission of the statutory duty is not specified, and was not intended to be specified in the statute. Responsibility for injuries to animals was specially imposed, because in most eases there would, independently of the statute, ffiave been no such responsibility, as at common law the owner of animals was bound to restrain them, and if they trespassed upon a railroad there was no liability for their destruction, unless it was wilfully or intentionally caused.”

In Purdy v. N. Y. & New Haven R. R. Co. (61 N. Y. 353) the special statute authorizing a foreign corporation to construct its tracks in Westchester county required it to erect and maintain fences upon the sides of its road, and it was held liable for injuries to cattle arising from defective fences, the court saying (at p. 355): With this requirement and “ under this act alone the defendants would probably not have been liable for killing tlie cattle, as they were not lawfully upon the adjoining close and were trespassing upon their road.” But the court held that the general statute of 1854 applied and permitted a recovery for any injury to cattle, although the cattle were trespassers.

I think these cases are controlling and indicate that by the change in the statute the common-law rule was intended to apply in case of defective cattle guards, and that a distinction, therefore, exists with regard to the liability on account of defective cattle guards and defective fences. I think, therefore, the verdict was properly set aside, The order should, therefore, be affirmed, with costs to • the respondent.

All concurred.

Order affirmed, with costs. 
      
       Laws of 1890, chap. 565 —[Rep.
     