
    George B. Dayton, Resp’t, v. New York, Lake Erie and Western Railroad Company, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 17, 1894.)
    
    Railroads—Fences.
    A railroad company is liable if it violates the statute as to fencing tracks, though the owner of the injured stock is not an adjoining proprietor.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes. •
    
      James II. Sevens, for app’lt; Clarence A. Farnum, for resp’t.
   Haight, J.

This action was brought to recover damages for the killing of five head of cattle. It appears that the cattle had escaped from the plaintiff’s pasture upon the adjoining lands of One Osborn, and from thence passed through an open barway at a farm crossing, onto the defendant’s railroad track, where they were run over and killed by a passing train. The bars had been removed for more than six months, and some of the evidence tends to show that the bars had been removed with the knowledge and consent of Osborn..

It is contended that the court erred in refusing the defendant’s motion for a nonsuit. We are, however, of .the opinion that the case was properly submitted to the jury. It has been held that where a railroad corporation neglects to maintain fences along its road, as required by the statute, and cattle get upon the track, and are injured by its engines or cars, the corporation is liable to the owner in damages, although he is not an adjoining proprietor, and it does not appear how the cattle escaped from his pasture. Corwin v. N. Y. & E. R. R. Co., 13 N. Y. 42; Bradley v. Buff., N. Y. & E. R. R. Co., 34 N. Y. 432; Rhodes v. Utica & B. R. R. R. Co., 5 Hun, 344; Purdy v. N. Y. & N. H. R. R. Co., 61 N. Y. 353; Kelver v. N. Y., Chi. & S. L. R. R. Co., 126 N. Y. 365; 37 St. Rep. 485. It is insisted, however, that these cases have no application, for the reason that the statute has been changed. We are, however, unable to discover any substantial difference in the new statute.

The Laws of 1854, c. 282, § 8, provides: “ Every railroad corporation * * * shall before the lines of such railroad are opened erect and thereafter maintain fences on the sides of their roads of the height and strength of a division fence as required by law, with openings or gates or bars therein at the farm crossings of such railroad for the use of the proprietors of the lands adjoining such railroads, and shall also construct where the same has not already been done, and hereafter maintain cattle guards at all road crossings, suitable and sufficient to prevent cattle, horses, sheep and hogs from getting on to such railroad and 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 fence and guards shall have been duly made and shall be kept in good repair suph railroad corporation shall not be liable for any such damages, unless negligently and wilfully done.”

The Laws of 1890, chap. 565, § 32, as amended by the Laws of 1891, chap. 367, provides as follows: “ Every railroad corporation * * * shall, before the lines of its roads are opened for use and so soon as it has acquired the right of way for its roadway, erect and thereafter maintain on the sides of its road, fences of the length and strength of a lawful division fence, with openings, or gates or bars therein at the farm crossings for the use of the owner and occupants of the adjoining lands, and shall also construct whére not already done, and thereafter 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 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 animal thereon, but when made and in good repair they shall not be liable for any such damages unless negligently and wilfully done.”

It will be observed that in the former statute provision was made for openings, or gates or bars at the farm crossings, “for the use of the proprietors of the lands adjoining such railroad ; ” while in the new statute provision is made for openings, or gates or bars at farm crossings, “ for the use of the owner or occupants of the adjoining lands.” The former is for the use of the proprietor, and the latter for the- owners and occupants. Certainly, this variation cannot operate to change the rule of liability as established by the cases above referred to.

The judgment and order appealed from should be affirmed.

All concur.  