
    Robert J. Davison, Respondent, v. The Delaware, Lackawanna and Western Railroad Company, Appellant.
    Fourth Department,
    November 17, 1909.
    Bailroad—duty to fence tracks — fence between roadbeds of adjoining railroads not necessary — negligence — injury to animal straying upon tracks.
    Where two railroads run side by side and each has properly fenced its exterior .boundary so that cattle are prevented from going upon the track of either road, there is a sufficient compliance with section 32 of the Railroad Law.
    Where a horse passing through a gate in the fence maintained by one of said railroads crosses its tracks and is killed by a train on the tracks of thq other road, there is no liability under said statute by reason of the fact that there was not a third fence separating the roadbeds of the two railroads.
    Where, in an action to recover the value of an animal so killed, there is no proof that the defendant was responsible for the fact that a gate became open so as to allow the animal to come upon the tracks, there can be no recovery on the ground of negligence.
    Spring, J., dissented.
    Appeal by the defendant, The Delaware, Lackawanna and Western Bailroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Steuben on the 24th day of October, 1908, upon the verdict of a jury for $500, rendered by direction of the court, and also from an order entered in said clerk’s office on the 20th day of October, 1908, denying the defendant’s motion for a new trial made upon the minutes.
    
      
      Halsey Sayles, for the appellant.
    
      William H. Nichols, for the respondent.
   Kruse, J.:

The plaintiff’s colt strayed upon the defendant’s railroad and was killed by the cars. The action is brought to recover the value of the colt. The trial court directed a verdict in favor of the plaintiff, to which the, defendant excepted, which presents the only question for review on this appeal.

The rights of way of the defendant and the Erie Eailroad Company adjoin each other; the tracks of the two railroad companies running substantially parallel where the accident occurred. The distance between the tracks of the two companies is stated by the witnesses to be from about 50 to 150 feet. The tracks run in an easterly and westerly direction, the Erie track being north of the defendant’s tracks. The defendant has a double track and the Erie a single track. There are fences on the north side of the Erie right of way and on the south side of the defendant’s right of way, but no fences between the two railroads. The colt was pastured in a lot immediately north of the Erie railroad. A farm crossing extends from the pasture over the tracks to the lands immediately south of the railroads. The colt escaped through the farm crossing gate in the fence on the north side of the Erie railroad, crossed the Erie track and was killed by cars on defendant’s tracks. The fence and gate through which the colt escaped were in good condition.

The colt was last seen alive in the pasture in the evening. The gate was then shut. It was open the next morning and the animal was found dead upon the defendant’s east-bound track, seventy or eighty rods from the crossing. Who opened the gate or how it 'came to be open does not appear. It is not claimed that it was through any fault of either of the railroad companies.

It is contended on behalf of the plaintiff that the defendant railroad company is liable because it failed to maintain a fence between the two railroads. That claim is founded on section 32 of the Bail-road Law (Laws of 1890, chap. 565, as amd. by Laws of 1892, chap. 676), which requires every railroad corporation to erect and thereafter maintain fences on the sides of its road. It provides as follows:

“ Every railroad corporation, and any lessee or other person in possession of its road, shall, before the lines of its road are opened for use, and so soon as it has acquired the right of way for its roadway, erect and thereafter maintain fences on the sides of its road of height and strength sufficient to prevent cattle, horses, sheep and hogs from going upon its road from the adjacent lands with farm crossings and openings with gates therein at such farm crossings whenever and wherever reasonably necessary for the use of the owners and occupants of the adjoining lands, and shall construct where not already done, and hereafter 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 are 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 animals thereon. When made and in good repair they shall not be liable for any such damages unless negligently or willfully done. A sufficient post and wire fence of requisite height shall be deemed a lawful fence within the provisions of this section, but barbed wire shall not be used in its construction..
“ No railroad need be fenced when not necessary to prevent horses, cattle, sheep and hogs from going upon its track from the adjoining lands. * * *”

The question presented' is whether the maintenance of the fence and gate on the north side of the Erie track is a compliance with the statute on the part of the defendant railroad. I am not aware that the precise question has ever been decided by the appellate courts in this State. In Kelver v. N. Y., Chicago St. L. R. R. Co. (126 N. Y. 365) it appeared that there were five unfenced parallel railroads adjoining each other, each owned by different companies. Cattle escaped from adjoining lands, passed over two tracks and were killed by an engine on.the third or middle track, and the middle track railroad company was' held liable. But in that ease it was pointed out that a different question would be presented if there had been a fence between the outer railroad and the lands immediately adjoining, from which the cattle escaped. The query is there raised whether the middle track railroad company might not under such circumstances be entitled to treat the fence of the other railroad company as its fence for the purpose of the statute.

As lias been seen, in this case fences were maintained on the north side of the Erie and the south side of the Lackawanna, the defendant’s railroad, thus effectually preventing cattle from going upon the tracks of either road. It seems to me that under such circumstances, the fence between the Erie right of way and the lands adjoining from which the colt escaped, should be treated and regarded as the fence of the defendant railroad company within the provisions of the statute. The Erie railroad seems to have maintained a fence on the south side of its track before the defendant’s railroad was constructed, but after that its maintenance seems to have been abandoned, very likely for the obvious reason that a fence between the two railroads would serve no useful purpose in preventing cattle from going upon the tracks.

If the gate had been kept closed the colt could not have gone upon the tracks. It was the open gate which permitted the colt to escape, and for that the defendant is not responsible, without showing that it was negligent in not keeping the gate closed (Whaley v. Erie R. R. Co., 181 n. Y. 448), and there is no claim that the gate was left open through the fault of either railroad company; at all events, there is no evidence upon which negligence of that character may be predicated.

The judgment and order should be reversed and a new trial granted, with costs to the appellant to abide the event.

All concurred, except Spuing, J., who dissented.

Judgment and order reversed and new trial ordered, with costs to appellant to abide event.  