
    Daniel Dolan et al., Resp’ts, v. The Newburgh, Dutchess & Conn. R. R. Co., App’lt.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed June 17, 1890.)
    
    1. Railroads—Liability as to fencing.
    Defendant’s road ran about fifty-nine feet norlh of a mill, whose owner had bound the railroad to leave its land opposite his mill unfenced so as to permit free passage to it. Plaintiff’s driver, while delivering a load of wheat, left a team standing unattended upon a strip of land in front of the mill, which strip was so narrow that part of the wagon occupied a part of the right of way of the railroad, and the team escaping upon the railroad tracks was killed by an approaching train. Held, that defendant was not liable. (Vann, Bradley and Brown, JJ., dissent.)
    2. Same.
    The fencing statute was not designed to prevent the owners of a team from voluntarily driving it onto the lands of the corporation, or being so on, to compel the corporation to indemnify its owners for the loss occasioned by the negligence of their agent in permitting the team to escape onto the track in front of a moving train.
    3. Same.
    The railroad, under the circumstances, was not required to fence its road at this point within § 8 of chap. 282, Laws 1854.
    Appeal from a judgment of the general term of the supreme court, in the second judicial department, affirming a judgment in favor of the plaintiffs, entered upon a verdict directed by the court.
    This action was brought to recover damages from the defendant on account of its failure to fence its track as required by law, whereby, as it is alleged, two horses belonging to the plaintiffs were run over and killed by a train of cars operated by the New York & New England Railroad Company, while running upon said track, pursuant to a contract for the joint use of the same by the two companies.
    At the point where the accident happened, near Brinkerhoffville, Dutchess county, the general direction of the defendant’s track is east and west. There was a grist mill directly south of the track, between fifty and sixty feet therefrom, at the locality in question. The only way of reaching the mill, except by crossing private property, was by a lane, leading from a highway at the north and terminating at the mill after crossing the track a little to the east thereof. On the 25th of September, 1886, said horses, hitched to a wagon loaded with grain in bags, were driven by plaintiffs’ agent across the track to the door of the mill fronting the railroad, which was fenced on the north and partially on the south, but there was no fence between the'mill and the track. After the wagon was unloaded, as the miller was busy, the agent of the plaintiffs stepped across the threshold of the mill to get the empty bags, leaving the team loose. At that instant a west bound freight train, belonging to the New York & New England road, came suddenly from behind another train standing upon a side track and frightened the horses, which ran west and turning to the north went upon the track in front of the moving engine and were killed. If there had been a fence upon the south side of the railroad in front of the mill they could not have gone upon the track. In 1868 the former owners of the mill property conveyed a strip of land in front thereof to the defendant for a right of way, and its railroad was subsequently built thereon. The deed contained a covenant on the part of the railroad company that the land so conveyed, or so much thereof as the grantors should elect, should “forever remain unenclosed so that the parties of the first part, their heirs and assigns, and all persons whom they may desire to have to do so, may pass and repass over said railroad and lands of said company to and from their mill and other buildings of parties of the first part, their heirs and assigns.”
    
      Milton A. Fowler, for app’lt; 0. JD. M. Baker, for resp’ts.
    
      
       Reversing 46 Hun, 681, mem.
      
    
   Follett, Oh. J.

The mill stands 59 feet 4 1-2 inches south of the center line of the railroad. Five feet of the space between the mill and the land of the railroad is occupied by a platform in front of the mill, which is ten feet long and about as high as the top of a wagon. The boundary line between the mill property and the railroad land is but four feet and ten inches north of the north edge of the platform. Teams in approaching the mill and while standing at it occupy a part of the right of way of the railroad. East and west of the mill and on the south side of the railroad it is fenced, and it is fenced on its north side, except where the lane which leads to the mill crosses the track. When the right of way was granted from the mill property its owner bound the railroad to leave its land opposite his mill unfenced, so as to permit free passage to and from it This mill was about 150 feet west of the freight depot, and the land in front of it may be said to form an extension of the station grounds. This being the situation, the agent of the owners of the team drove it on this strip of land, stopped in front of the mill, and there left it standing partly on the land belonging to the owners of the mill and partly on that of the railroad corporation, for the purpose of delivering a load of wheat. The driver left the team so standing, unattended, and it escaped upon the railroad tracks and the horses were killed. The railroad corporation permitted its land to be used as a way for the owner of the mill and his patrons to go to and from it, of which privilege the plaintiffs were in the act of availing themselves when their team was killed. To hold that the fencing statute was designed to prevent the owners of a team from voluntarily driving it on to the lands of the corporation, or being so on, to compel the corporation to indemnify its owners for the loss occasioned by the negligence of their agent in permitting the team to escape on the track in front of a moving train, is to give the statute an effect not contemplated by its authors, and not thought of, I think, heretofore.

Many places adjacent to railroad stations, which are not highways nor strictly station grounds, are necessarily left unfenced for the accommodation of the adjoining owners and the public ; and to hold that in all such cases a railroad is absolutely liable for an injury sustained by teams which enter on the track while in the care of their drivers, without regard to the question of the negligence of their owners or drivers, is to impose an unreasonable liability on the roads, and one altogether foreign to the purpose of the statute.

The court erred in refusing to hold that the railroad was not required to fence its road at this point, within § 8 of chap. 282 of the Laws of 1854, which provides: “ But no railroad corporation shall be required to fence the sides of its roads except when such fence is necessary to protect horses, cattle, sheep and hogs from going on to the track of the railroad from the lands adjoining the same.”

I am unable to concur in the reasoning that the escape of this team on to the railroad land proves that a fence was necessary to protect horses from getting' on the track from lands adjoining the same. If this conclusion follows from the facts in this case it is difficult to’see why the injury of a team by a collision with a moving train, at points other than at highway or farm crossings, will not always amount to proof that a fence was required by the statuta

. The judgment should be reversed and a new trial granted, with costs to abide the event.

Haight, J.

Had the mill stood upon the line of the defendant’s right of way, there could be no question but that it would serve the purpose and be regarded as an ample fence, and the fact that it stands back from the railroad lands four feet and ten inches does not materially change the situation.

If the plaintiffs, or their agent, had driven their team in by the side of the track wholly upon the railroad lands and the horses had escaped upon the track and been killed, it could not be said that they had escaped from lands adjoining the railroad lands, or that a fence on the line of the right of way would have afforded any protection. The escape in question was partially from the railroad lands; it was from a point between the platform of the mill and the tracks ; and whilst one of the horses may have stood on land adjoining the defendant’s right of way, it does not appear to me as materially changing the situation. A fence would not have afforded a protection to the team ; it only would have prevented the plaintiffs’ agent from driving so close to the platform of the mill, and forced him to drive in wholly upon the railroad lands.

Yahh, J.

(dissenting.)—The only exception that presents any question for discussion Was taken by the defendant to the denial of its motion to nonsuit made at the close of the evidence. That motion was based upon the following grounds:

First. That the engine which struck the team did not belong to the defendant, but to the New York & New England Eailroad Company, “ which had a joint right with the defendant, and was jointly liable, if anybody was liable, to see that there were fences there before they had a right to run an engine over this railroad track.”.

Second. That the railroad is substantially fenced upon the side from which the team came, and there is no requirement in the statute that the fence should be on the line distinctly between the adjoining owner and the railroad, but it may be upon any line which answers the purpose.

Third. That the driver of the team was guilty of contributory negligence.

Fourth. That the owner of the land, having required a covenant from the defendant that the place should be left open, would have no right of action if his own stock went upon the track from the adjoining land, and his licensees, or all people who came to his mill, stand in the same position that he would.

The statute requires that “ every railroad corporation, whose line of road is open for use, shall, within three months after the passage of this act, and every railroad company formed or to be formed, but whose lines are not opened for use, shall, before the lines of such railroad are opened, erect and thereafter maintain fences on the sides of their roads.; * * * and so long as such fences * * * 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 * * * 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.” Laws 1850, chap. 140, § 44, as amended by Laws 1854, chap. 282, § 8.

The learned counsel for the defendant says in his points that “ the statute is penal and cuts off the defense of contributory negligence,” so that we are relieved from the duty of examining the case with reference to the subject of negligence on the part of the driver of the team. The substantial question, therefore, is whether the defendant is liable, inasmuch as the injury was inflicted by an engine that did not actually belong to it.

By a written agreement between the two railroad companies the New England road was allowed to run freight and passenger trains upon the track of the railroad ” belonging to the defendant, which covenanted “ to keep its said railroad, so to be used by the parties hereto jointly, in good and proper order for the saferoperation thereof by both parties.” The New England road agreed to pay a stipulated sum annually “ for the use of said track,” and that its trains should be “ run, operated and controlled according to the time tables, rules and regulations of ” the defendant

It is evident from these provisions that this case does not come within Ditchett v. The Spuyten Duyvil & P. M. R. R. Co., 67 N. Y., 425, because the defendant and lessor in that case had parted with the possession and control of the road and its appurtenances for the term of ninety-nine years, and the lessee had covenanted to see that the demised property was properly cared for. At the date of the lease the fence was in good condition, but a section thereof fell down after the lessee took possession.

In this case, the New England road had neither possession nor control of the railroad, but simply a right of passage for its trains, subject to the rules and regulations of the defendant, which had never built a fence at the point in question, although it was organized in 1867.

It has been held that to create a liability under the statue there must be some action on the part of the corporation, by its mechanical or other agents, producing the injury, and hence that there is no liability for the value of a colt, which, although it went upon the track because the fence was down, was not injured by a train, but by falling into the open spaces between the ties of a bridge. Knight v. N. Y., L. E. & W. R. R. Co., 99 N. Y., 25. That case has no application to this, as the plaintiff’s horse was killed by an engine, but whose engine was it in the eye of the law, considering the circumstances and the evils that the legislature intended to prevent ? If a railroad company should use a borrowed engine, could it escape liability ? Why not if the statute is to be strictly construed ? The obvious answer to this question is that such a construction would defeat the object of the statute. Why then should a company that permits the engine of another to run upon its track while it is in possession and control of the railroad be relieved of responsibility?

The object of the section, as it has been held repeatedly, is to-protect passengers upon railroad trains from accidents, as well as to prevent loss to owners of horses and cattle. Corwin v. The N. Y. & Erie R. R. Co., 13 N. Y. 42, 48; Shepard v. Buffalo, N. Y. & Erie R. R. Co., 35 id., 641-643; Brady v. Rensselaer & Saratoga R. R. Co., 1 Hun, 378, 380. “ One method provided for securing that object,” as was said by Judge Denio in the Corwin case, “is the provision charging the companies with damages for all injuries done to animals where they have disregarded the statute; and, moreover, it is not material from whence or under what circumstances the animals come upon the track, provided they are enabled to get there by the absence of fences or cattle guards.” P. 54.

It was enacted, as was said in another case, “ from public considerations. Its purpose was to protect the travelling public, as well as farmers along the line of railroads, and it should receive such a construction as to afford the protection designed.” Purdy v. N. Y. & N. H. R. R. Co., 61 N. Y., 353, 355. “It should receive a liberal construction to effectuate the benign purpose of its framers.” Tracy v. The Troy & Boston R. R. Co., 38 N. Y., 433, 437.

It was of no concern to the public or to the plaintiffs whether the strict legal title to the engine that killed the horses was in the defendant or in some other corporation, as long as it was running1 upon the defendant’s track by its invitation, under its regulations and indirectly, at least, for its benefit. Sound public policy requires that all trains that are permitted by a railroad company to run upon its track, while it is in full possession, should be treated as its trains for the purpose of enforcing the statutory liability for, operating the road before it is properly fenced. The defendant bad no right to open its line for the use even of its own trains until it had complied with the fencing statute, and when it gave] a right of passage to the trains of another corporation, it made those trains its own, so far as a violation of the law is concerned.

While the engine that did the mischief did not belong to the defendant in the ordinary sense of the strict ownership of property, still, within the broad purview of the statute, passed for the protection of the .public and essential to the safety of passengers, I think, that any engine which passed over the defendant’s road with its consent, and in a measure under its control, should be regarded as the engine of the defendant.' This position is supported by well-considered decisions in other states, made when similar statutes were under consideration, and it is in conflict with no authority to which our attention has been called. Fontaine v. The Southern Pac. R. R. Co., 54 Cal., 645; The Illinois Central R. R. Co. v. Kanouse, 39 Ill., 272; The T. P. & W. R. R. Co. v. Rumbold, 40 id., 143; East St. Louis, etc., R. R. Co. v. Gerber, 82 id., 632; Clement v. Canfield, 28 Vt., 302.

The claim ■ of the defendant that its road was substantially fenced upon the south rests upon the theory that the mill itself was a fence, or stood in the place of a fence. There was no fence, however, between the vacant land in front of the mill and the land of the defendant. If there had been, as the uncontradicted evidence shows, the accident could not have happened

It is doubtful whether any question was raised upon the trial, as to the necessity of a fence at the place in question, under that part of the statute which provides that “ no railroad corporation shall be required to fence the sides of its road, except when such fence is necessary to prevent horses, cattle, sheep and hogs from getting on to the track of the railroad from the lands adjoining the same. Laws 1854, chap. 282, § 8.

Assuming, however, that the question is before us, it should be answered, in the light of the rule already alluded to, that the statute should be liberally construed, so as to afford the public adequate protection. The command of the statute to all railroad corporations is to erect and maintain fences on the sides of .their roads, except when no fence is necessary to prevent horses, etc., from getting on to the track. If the defendant claimed that the locality under consideration came within the exception, it was its duty to show it.

It is certain that if there had been a fence of the proper height and strength in front of the mill the horses could not have gone upon the track. It is also certain that there was nothing to prevent the various animals named in the statute from straying down the lane leading from the highway to the mill, and, turning to the west, reaching the open space in front thereof, and thence going upon the trade as these horses did. It was the aim of the legislature to prevent animals from entering upon the railroad track from the adjoining lands, and wherever a fence is necessary for that purpose the law requires the company to erect it, and inconvenience is no excuse for failing to comply with the requirement. Bradley v. Buff., N.Y. & Erie R. Co., 34 N. Y., 427; Brace v. N.Y. C. R. R. Co., 27 id., 269. Was a fence necessary for this purpose at the point in question ? “ The plain answer would seem to be,” as this court said in the Shepard case, “ that it was necessary * * * as the facts proved.” 35 N. Y., 646. It was further said in that case that the amendment of 1854, quoted above, was probably aimed at rivers and lakes through whose borders the railroads might run, and where a fence would be unnecessary; or, in other cases, where high rocks or other obstructions would render it unnecessary to fence against the invasion of cattle.” In other words, a fence is necessary wherever cattle can get upon the railroad track from the adjoining lands. This wbuld not, apply to highway crossings, of course, as cattle guards, required by the same statute, furnish the only protection that is there practicable, or to that part of'a railroad that runs lengthwise upon a highway, where fences would interfere with the rights of the public.

But does the statute apply to horses harnessed and hitched to a wagon ? Why not, if they have escaped from the control of the driver? Is a horse less dangerous upon a railroad track because he is harnessed ? Does the statute except horses of a certain kind or under certain circumstances? On the contrary, it says that until the fence is built the company shall be liable for the damages done to any horses. This is not the case of a traveler upon a highway with his horses in custody, as in the Ditchett case, 67 N. Y., 425, 428. The horses of the plaintiffs had escaped from custody .and went directly from the adjoining lands, which were no part of a highway, on to the track.

The covenant contained in the conveyance of the right of way cannot override the statute nor relieve the defendant from the duty imposed thereby. The plaintiffs were strangers to that covenant and, so far as appears, aid not even know of its existence. If a railroad company can get its right of way cheaper by entering into an agreement with the owner that no fence shall be built upon the land conveyed, it cannot be allowed to claim the protection thereof as against a stranger suing for damages caused by a violation of the statute requiring the erection of fences.

I think that the judgment should be affirmed, with costs.

Judgment reversed and a new trial granted, with costs to abide the event.

All concur, except Yann, Bradley and Brown, JJ., dissenting.  