
    Pierre Meisch, Resp’t, v. The Rochester Electric Railway Co., App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 20, 1893.)
    
    1. Railroad—Negligence —Dogs on track.
    Plaintiff was superintendent of a cemetery and as such kept watch dogs to guard it. At a time when there was deep snow on the ground and the same had been thrown up from defendant’s track on both sides tile dogs were returning home along the track when one of defendant’s cars came along. The motor man rang the gong, hut. did not slacken the rate of speed of the car, and overtook and ran over one dog as it was about to turn into the cut in the bank at plaintiff’s gate. Held, that even if the dog was a trespasser the motorman was not justified in running him down, and the question whether in the exercise of reasonable diligence he could have discovered the danger in time to avoid it was a question for the jury.
    
      3. Same—Damages.
    Where one who has had experience in raising and selling dogs has testified that a dog of this kind trained to watch was worth from §100 to a verdict for $96.83 is not excessive.
    Appeal by the defendant from a judgment of the county court of Monroe county, entered on the verdict of a jury, in an action first tried in the municipal court of Rochester and appealed to the county court for a new trial; also from an order denying defendant’s motion for a new trial on the minutes of the court.
    
      J. S. Thompson, for app’lt; A. E. Sutherland, for resp’t.
   Dwight, P. J.

The action was to recover damages for the alleged negligent killing of a valuable young dog. We think the judgment is right and should be affirmed. The facts which the evidence tended to establish and upon which the jury had a right to base their verdict were briefly as follows. The plaintiff was superintendent of the Holy Sepulchre Cemetery on the Boulevard or Charlotte road, extending north from Rochester, along and upon which the railroad of the defendant was constructed, and its

electric cars were run. The plaintiff’s house was near the north end of the cemetery property, which consisted of about 800 acres lying on both sides of the road. The plaintiff, having the charge and oversight of all this property, found it useful to keep one or more watch dogs on the premises, and at the time mentioned in the evidence he had two, one an old dog which he had trained to patrol the premises several times a day, passing, up and down the road for that purpose, and the other, the dog in question. He was a v§ry large and well bred English mastiff, only eleven months old, and was accustomed to accompany the old dog in his rounds, and was thus, in the most effective way, becoming trained to perform the same duties. On the day of the accident the two dogs were returning together from the southerly portion of the property to the plaintiff’s house, and had taken the railroad track for that purpose.

It was in January, and there was deep snow on the ground,, some of which had been thrown from the track by the snow plow, and lay piled up to the height of two feet on either side. A water tank stood about 1,000 feet south from the plaintiff’s; house, and at that point there were cross openings through the snow banks, but no others going north until the plaintiff’s gate was reached. As the defendant’s car Ho. 14 passed the water tank going north on the afternoon in question the two dogs were plainly to be seen about 825 feet ahead, running on the track between the banks of snow towards their home. The car was running at a speed of from ten to twelve miles an hour; the motorman struck his gong, but made no effort to check the speed of the car; the older dog leaped from the track, but the younger one failed to do so, and was run down and killed just as he reached and was on the point of turning through the cut in the snow bank opposite his master’s gate; he had ran two-thirds the distance the car had done in the same time, and a very slight reduction in the speed of the latter at any time down to the last moment of the race would have enabled him to escape without injury.

Upon these facts, which, as we have said, were so well supported by the evidence that the jury had a right to accept them -as the facts of the case, there can be no doubt of the plaintiff’s right to recover so far as the question of the defendant’s negligence was concerned. ■ Even if -the dog was a trespasser on the track the motorman was not justified in running him down; but it was his duty, on discovering that there was danger of -doing so, to slacken the speed of the car; and it was clearly -a question for the jury whether in the exercise of reasonable vigilance he might have discovered the danger in time 'to avert it. Watkins v. Atlantic Avenue R. R. Co., 20 Hun, 237 ; Watson v. Broadway & Seventh Ave. R. R. Co., 6 St. Rep., 538; S. C., 18 id., 1029; Swift v. S. I. R. T. Co., 33 id., 604'; Bernhard v. Rochester Ry. Co., 51 id., 880.

It is doubtful whether there was 'any evidence in the case which tended to charge the plaintiff with contributory negligence in permitting the dogs to be at large in the highway. The employer of the plaintiff was the owner of the land-on both sides of the highway, and of the fee in the highway itself, subject only to the easement of passage of the public, including the defendant, and his right to make use of the highway for the excursions of his dogs in the business of guarding the premises-so exposed to'trespassers can hardly be questioned. But it was-at least a question for the jury whether he was -guilty of any negligence in respect to the care of the dogs On the occasion in question.

These views, if correct, dispose of the defendant's exception to the denial of its motions for a nonsuit and for the direction of a verdict.

The single exception taken by the defendant :to any ruling on the admission of evidence is not discussed on the argument here, and it seems to be without merit. The same may be said of the defendant’s exception to the refusal of the court to charge that no competent evidence had been given of the market value of the dog. -Evidence was given on that -subject by the witness Weighed, and was received without objection, except on the ground that the -witness—not the evidence—was incompetent. But that witness testified that he made a practice of raising and training dogs, exhibiting them at shows and buying and selling dogs; that he. knew their market value in Rochester, and that a mastiff trained to watch was worth from $100 to $200. This-evidence was uncontradicted and the verdict of the jury was for $96.83. The motion for a new trial, therefore, on the ground of excessive damages, in addition to the ground stated in the motion for a non-suit, was properly denied.

The judgment and order appealed from should be affirmed.

Judgment and order of the county court of Monroe county, appealed from, affirmed.

Lewis and Haight, JJ., concur.  