
    Diamond Brick Co. v. New York Cent. & H. R. R. Co.
    
      (Supreme Court, General Term, Second Department.
    
    December 10,1890.)
    Railroad Companies —Fences—Killing Stock—Contibutoby Negligence.
    A railroad company which, in compliance with the statute, maintains fences on the sides of its road, is not bound, as against the owner of adjoining land, to close a gate therein built, in accordance with law, for the use of the owner, although its officers have notice that the gate is open; and the company is not liable for damages for the death of stock pastured on such adjoining land by permission of the owner, passing therefrom through the gate to the railroad, and' killed there by a passing locomotive.
    
      Appeal from circuit court, Rockland county.
    Action by the Diamond Brick Company against the Hew York Central & Hudson River Railroad Company for damages for the killing of plaintiff’s horse by defendant’s locomotive on the West Shore Railroad, leased and operated by defendant. From a judgment for plaintiff entered on the verdict of a jury, defendant appeals.
    
      2 Rev. St. N. Y. (7th Ed.) p. 1604, § 2, provides that a lessee of a railroad “shall maintain fences on the sides of the road so leased, 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 sucli railroads,” and shall also maintain cattle-guards; if such fences and guards are not made, and when not in good repair, such lessees shall be liable for damages by their agents or engineers to any cattle, horses, etc., thereon; “and when such fences and guards shall have been duly made and shall be kept in good repair, such lessee shall not be liable for any such damages, unless negligently or willfully done. ” For former report, see 7 N. Y. Supp. 868.
    Argued before Barnard, P. J., and Dykman and Pratt, JJ.
    
      Ashlel Green and Herbert E. Kinney, for appellant. George W. Weiant, for respondent.
   Barnard, P. J.

The West Shore Railroad runs through the farm of Emma Reed. The railroad fenced its track, and left a gate for the use of the farm owners. The Diamond Brick Company, by the permission of the owner, had pastured a horse upon the Reed farm. The field in which the horse was pastured ran back to the railroad. The gate in question was a part of the fencing when it was shut. In September, 1886, the horse got upon the railroad track and was killed by an engine of defendant which operates the West Shore Railroad. The fence was a wire fence four wires high, fastened to upright posts, and was three or four feet high. There was some proof that the fences were made without sufficient strength of wire and staple, but the proof was so entirely unaccompanied by any evidence that the horse got on through these defects, that the judge told the jury that the evidence was insufficient to justify the conclusion that the fence was insufficient. Under the evidence, the gate was continually kept open; at least there is evidence which justifies the jury in so finding. The only question is, therefore, whether or not, as against the land-owner, the railroad company is bound to close the gate when its officers have notice that it is open. There seems to be no basis for a charge of negligence against the defendant. The gate was built for the owner, and it was built in accordance with law for the use of the owner. The railroad could not control the use of the gate. After use the owner either did not shut the gate or permitted it to remain open for long intervals of time. If this is neglect on the part of the company arising from a failure to shut the gate, why is it not neglect on the part of the owner to leave it open while using it for the purpose of the farm from day to day all summer, or a great portion of the summer? She took her risk as to the cattle getting on the railroad by the open gate, and she hired the pasturage to the plaintiff upon the same condition. It would have been unwarrantable in the defendant to shut the gate on the day of the accident if the owner was using the crossing, and a failure to inquire whether or not the gate was open by the farm employes using the same is not a negligent act. The proof therefore fails to show any neglect in respect to the gate in question. The owner, for her own convenience, left the gate open, and neither she nor her employes or lessees can complain of the railroad company for not shutting it. The judgment should be reversed and a new trial granted, costs to abide event.  