
    Charles A. Simmons, Respondent, v. The Poughkeepsie and Eastern Railway Company, Appellant.
    
      Negligence — am, open gate at a railroad crossing, the proximate cause — killing a horse upon the track — degree of can'e required of the defendant.
    
    In an action brought to recover damages resulting from the death of a horse caused by the alleged negligence of the defendant, it appeared that the plaintiff’s farm lay on each side of the defendant’s railroad track, which ran north and south; that there was a crossing running east and west; that the horse in question was kept in a barn on the east side; that upon this side the defendant maintained at the crossing a gate; that on the west side there was an opening, but no gate; that when the accident happened the gate on the east side was open; that this gate had been used by the defendant’s servants, but it did not appear who opened the gate, nor how long it had been open; that the horse went through the open gate on the east side of the track, went to the west side of the track and started to recross, and, when the train in question came, ran up the track for a distance of about 400 feet, became caught in a culvert and was struck by the train.
    Upon the trial the court submitted to the jury the question whether the defendant was'guilty of negligence which led to the gate on the east side being open, and it refused to charge that there was no proof that the gate was opened by the defendant.
    
      Held, that as there was no proof whatever that the ■ defendant opened the gate, and none that the fence and gate which it had erected upon the east side were not in all respects sufficient, the defendant could not be charged with negligence;
    That, as the proximate cause of the accident was the fact that the gate upon the east side of the track was open, it was unnecessary to consider the obligation of the defendant to have placed a gate at the opening which existed on the west side;
    That, assuming that the defendant was not responsible for the open gate through which the horse strayed, it could only be made liable for reckless, wanton or malicious conduct upon the part of its employees in running the horse down.
    Appeal by the defendant, The Poughkeepsie and Eastern Railway Company, from a judgment of the County Court of Dutchess county, entered in the office of the clerk of the county of Dutchess on the 7th flay of August, 1895, upon the verdict of a jury, and also from an order entered in said clerk’s office, bearing date the 20th day of December, 1895, denying the defendant’s motion for a new trial made upon the minutes.
    
      Frank B. Lown, for the appellant.
    
      A. M. c& G. Card, for the respondent.
   Hatch, J.:

This action- was brought to recover damages for negligence in producing the death of a horse which had strayed ripon defendant’s tracks and was there run down by a train operated by defendant. The recovery is sought to 'be sustained upon two theories: First, that defendant was guilty of negligence in opening a gate leading. from plaintiff’s premises to defendant’s tracks. Second, that defendant was guilty of negligence in net acting with ordinary care and prudence after it discovered that the horse was upon its tracks. The case was submitted to the jury by the learned court upon both theories and resulted in a verdict for the plaintiff. Substantial obstacles stand in the way of supporting the verdict thus rendered. ‘The case established no more -than these facts: Plaintiff’s farm lay on each side of the railroad track, which ran north. and south through it; a crossing was maintained over the tracks and provision was made for gates in the fence on either side; on the east side was a barn ■ where the horse in question was fed and kept during the winter; this side was separated from the -tracks by a fence with a gate therein erected and maintained by defendant; on the west side there was an opening for a gate, but none had been put up, respecting which there was some dispute as to whether defendant had dis- • charged its duty in this regard. ' Plaintiff testified that the horse’was fed on the east side, at the barn.; that at the time of the accident the gate on this side was open. Who opened it or when it was opened, there is no proof, and plaintiff stated that he did not know liow the gate came to be opened. He fed the horses; had .no men working for him, and did not notice the position of' the gate on the' morning in question. The fence had been built something over a year, and the gate had been used by defendant’s men, who went through it sometimes to the barn for shelter from storms and to eat their dinner. But plaintiff was not able to state that he had seen any of defendant’s employees go through the gate within a month before the accident, or that he saw them then or that the gate had been closed within that time. And he would not testify' that it was.not open more days prior to the accident than it was closed, his statement in this regard being : I don’t know anything about it. I have to feed my horses on the other, side of the barn.” The horse escaped from the east side to the west side of the track and started to recross; when the train came it was cut off and ran up the track, a distance of about 400 feet, where it became caught in a culvert and was struck by the train. The court submitted to the jury the question whether defendant Was guilty of negligence which led to the gate on the east side being open, and refused to charge that there was no proof that the east gate was opened by the defendant. An exception to this refusal presents this question. As we have seen, there was no proof that defendant opened the gate, and consequently no basis for charging it with negligence in this regard. So far as the case shows defendant had discharged its obligation by building a suitable fence, and there was no proof that the fence and .gate erected were not in all respects sufficient. The case is, therefore, brought within the decision in Diamond Brick Co. v. N. Y. C. & H. R. R. R. Co. (58 Hun, 396).

The theory of the submission was error and defendant was entitled to the charge requested. The proximate cause of the accident was leaving the gate on the east side open, and for this it was not shown that defendant was responsible. This view renders unnecessary of consideration the obligation of defendant respecting the opening on the west side. If we could see our way clear to upholding the recovery upon the first theory, there is a fatal obstacle in the second. The measure of defendant’s obligation in this regard was defined by the court to be usual and ordinary care. Such is not the rule; on the contrary, assuming that defendant' was not responsible for the open gate through which the horse strayed, it could only be made liable by the reckless, wanton or malicious conduct of its agents in running the horse down. (Boyle v. N. Y., L. E. & W. R. R. Co., 39 Hun, 171; S. C., 2 Silver. N. Y. R. 326.)

The facts of the present case in this regard are in all respects weaker than those presented in the case cited, where a recovery based on' this ground was set aside. This point was presented by the motion for a nonsuit, not exactly and with precision, yet it was. sufficient to raise it.

It follows that the judgment and order' appealed from should be reversed and a new trial ordered, with costs to abide the event.

All concurred.

Judgment and order reversed, with costs to abide the event.  