
    (82 Hun, 308.)
    MAGILTON V. NEW YORK CENT. & H. R. R. CO.
    (Supreme Court, General Term, Third Department.
    December 4, 1894.)
    Railroad Companies—Injuries to Stock.
    In an action for killing a horse which went on defendant’s track without defendant’s fault there was evidence that the train was moving rapidly, but not at an unusual speed; that the place of the accident was on a down grade; that engineer repeatedly blew the whistle after he saw the horses on the track, that he saw them for some time before the accident, and that some persons were endeavoring to drive them off the track, and succeeded in getting off all but the one that was killed. Held-, that the evidence did not show such reckless and willful conduct of the trainmen as would render the railroad company liable for injuries to trespassing animals.
    Appeal from circuit court, Green county.
    Action by William H. Magilton against the New York Central & Hudson River Railroad Company for killing plaintiff’s horse. From a judgment entered on a verdict in favor of plaintiff for $200 damages and $106.40 costs, and from an order denying a motion for a new trial made on the minutes, defendant appeals.
    Reversed.
    Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.
    Ashbel Green (F. L. Westbrook, of counsel), for appellant.
    J. A. Griswold, for respondent.
   PUTNAM, J.

Plaintiff recovered a judgment for the sum of $200, the value of a horse which strayed upon defendant’s tracks and was killed by defendant’s cars. The complaint alleged negligence on the part of defendant—First, in not providing and maintaining proper means of fastening the gate at plaintiff’s farm crossing, whereby the gate became open, and the plaintiff’s horses strayed on the railroad tracks, and the animal in question was killed by a train of cars running on defendant’s road; second, in the reckless and careless manner in which defendant’s servants ran said train at the time the horse was killed. The trial judge held that there was not enough evidence to show negligence on the part of defendant in neglecting to provide and maintain fastening or means to secure the gate in question to submit to the jury; but did submit the question as to the negligence of defendant’s servants in managing the train by which plaintiff’s horse was killed. Hence, the only question to be considered is, did the evidence establish such negligence or misconduct on the part of defendant’s engineer in charge of the engine that ran over plaintiff’s horse as to render defendant liable for its value? As, under the ruling of the court below, the evidence did not show any negligence on the part of the defendant in maintaining the fastenings of the gate at the place where the horse came on the track, and as it was not shown that the said gate became open on account of any fault on the part of the defendant or its servants, the horse to recover the value of which the action was brought must be deemed as trespassing upon defendant’s land at the time he was killed. Munger v. Railroad Co., 4 N. Y. 349, 5 Denio, 255; Boyle v. Railroad Co., 39 Hun, 171-173; Id., 115 N. Y. 636, 21 N. E. 724. Hence, under the above authorities, the defendant was not liable for the injury to the horse unless the evidence established the fact that the animal was killed by a reckless or willful act of defendant’s servants. A careful examination of the evidence shows that it fails to establish such a state of facts as to render the defendant liable under doctrines established by above authorities. At the place where the accident occurred there was a down grade. There was evidence showing that the train was moving rapidly, but not that it moved more rapidly than such trains usually do at that place. It appears that the engineer repeatedly blew the alarm whistle after he saw the horses on the track, and, although he saw the animals for some distance before the horse was struck, it was shown that at the time of the accident one of defendant’s employés was endeavoring to drive them from the track, and all the animals did leave the track but the one killed. While possibly the evidence established some negligence on the part of defendant’s engineer in failing to “slow up” the train, it does not show any reckless or willful act on his part which caused the death of the horse. The facts in the case of Boyle v. Railroad Co., supra, are very similar to those in this case. There, as here, the horses came on the railroad track through a fence the defendant was bound to maintain, in consequence of the removal of a panel in the fence .by some person not in the employment of ihe defendant. The horses ran on the track in front of the engine which caused the injury for half a mile before they were killed, the speed of the train not being diminished. It was held by the general term of the Fifth district that the defendant was not bound to reduce the speed of the train. The horses were trespassing on the land of the railroad company, and it could only be made liable by showing that the engineer acted wantonly and maliciously. That, under the facts shown, the trial court should have refused to submit that question to the jury. The court of appeals, in affirming' the judgment in the case, said: “There was no evidence that plaintiff’s horses were killed by the reckless, wanton, or malicious conduct of defendant’s engineer, and hence there was no basis for recovery.” Under the doctrine established in Boyle v. Railroad Co., supra, it is impossible to sustain the judgment in this case. Under that decision we must hold that plaintiff’s horses at the time of' the accident were trespassing upon defendant’s land, and the latter was not bound to lessen the speed of its train. It follows that its failure to do so cannot be deemed a reckless, wanton, or willful act. There being in the case no other evidence of negligence on the part of defendant except its failure to slow up its train, it follows that the case should not have been submitted to the jury, but that the trial court should have nonsuited the plaintiff, or directed a verdict in favor of the defendant. The judgment should be reversed, and a new trial granted, costs to abide the event. All concur.  