
    Eligio Mendizabai, an Infant Over the Age of Fourteen Years, by Thomas E. Summers, his Guardian ad Litem, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
    
      Negligence — injury to an employee by reason of a construction train, pushed by an-engine from, the rear, running over a cow and being derailed — duty of the railroadi company to use fences or other precaution to avoid such an occurrence.
    
    In an action brought to recover damages for personal injuries it appeared thafc the defendant operated á single-track branch road about twelve miles long, and! that the plaintiff, who was nineteen years of age, was employed upon one of its construction trains; that on the day of the accident, the train, which consisted of a caboose and three loaded flat cars pushed by an engine stationed at the-rear, ran over a cow which was grazing upon the track, derailing the train and causing the plaintiff, who, by direction of the foreman, was seated upon one of" the flat cars, to be severely injured.
    It further appeared that cows frequently trespassed, upon the track at all points, including the precise place where the accident- occurred, and that there was-nothing in the way of fences or cattle guards to prevent them. There was, no direct evidence that the construction train had ever been run backward during the period of the plaintiff’s employment.
    
      Held, that a judgment entered upon a verdict ip favor of the plaintiff should be affirmed;
    That the jury was entitled to find that it was negligent to run the train backward, so that the engineer could.not instantly see and avoid the danger which the presence of cattle upon the track involved, and in such wise that the train waa deprived of the aid of the cowcatcher in case of an unavoidable collision;
    That the jury might find that it was the duty of the defendant to guard against the danger created by the presence of cattle upon the track, either by fencing such track or by using other precautions.
    Appeal by the defendant, The New York Central and Hudson River Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 20th day of February, 1903, upon the verdict of a jury for $17,000, and. also from an order entered in said clerk’s office on'the 5th day of March, 1903, denying the defendant’s motion for a new trial made upon the minutes.
    
      John F. Brennan, for the appellant.
    
      Cornelius O'Connor, for the respondent.
   Hieschbeeg, J.:

The plaintiff, a minor nineteen years of age, was employed by the defendant as a workman on a construction train running on a branch single-track road about twelve to fourteen miles in length, between Mahaffy and Carmoyle in the State of Pennsylvania. On the 24th day of September, 1902, the train was made up of an engine and caboose and three flat cars, which latter were loaded with gravel, slate and stone, to be distributed along the line. On the day mentioned the train left Mahaffy at seven o’clock in the morning, the engine being stationed at the rear and pushing the train, and the plaintiff being seated upon one of the flat cars by direction of the foreman in charge of the work. A few minutes after the train started it ran over a cow which was grazing upon the track, the caboose and flat cars were lifted and derailed, and the plaintiff was so severely injured that both his left arm and his left leg were required to be amputated.

There was sufficient evidence that the danger was reasonably to have been anticipated. Cows frequently trespassed upon the track at all points including the precise place where the accident occurred, and there was nothing in the way of fences or cattle guards to prevent them. Under the circumstances the jury Was entitled to find that it was not reasonable care to run the train backward so that the engineer could not instantly see and avoid the menace which the presence of cattle upon the track afforded, and so that tlie train was deprived of the aid of the cowcatcher in case of unavoidable collision. There was no direct evidence that the train was ever run backward during the period of the plaintiff’s employment and while he was upon it prior to the occasion in question. There was evidence given on the part of the defendant that it was customary upon this road to run the construction trains either way, but no witness testified that the train was ever in fact run backward to the plaintiff’s knowledge in accordance with such custom during the few months of his employment, excepting upon September 24,1902. On the other hand, the plaintiff testified that he had never seen it ■ done until on the morning of the accident, and two witnesses in his behalf testified that on all prior occasions the locomotive drew and did not push the train.

That the defendant may be held liable to an employee who has not assumed the risk for a failure to exercise a reasonable degree of care in keeping the track free from obstructions is undoubted. (Donnegan v. Erhardt, 119 N. Y. 468; True v. Lehigh Valley R. R. Co., 22 App. Div. 588; Terre Haute & I. R. Co. v. Williams, 172 Ill. 379; Dickson v. Omaha & St. L. R. Co., 124 Mo. 140; Lackawanna & Bloomsburg R. R. Co. v. Chenewith, 52 Penn. St. 382,387.) Nor is it controlling that no statutory duty exists to guard against cattle by fencing. In the Donnegan Case (supra) the plaintiff was a brakeman in the’ defendant’s employ, and the court in affirming a judgment recovered by him, said (p. 473) : A railroad company for the safety of its passengers as well as its employes upon its engines and ears, is bound to use suitable care and shill in furnishing, not only adequate engines amd earns, but als.o a safe and proper t/raeh and road-bed. The track must be properly laid and the roadbed properly constructed, and reasonable prudence and care must . be exercised in keeping the track free from obstructions, animate and inanimate; and if, from want of proper care, such obstructions are permitted to be or come upon the track, and -a train is thereby wrecked, and any person thereon is injured, the, railroad company, upon plain common-law .principles must be held responsible. Experience shows that animals may stray upon a railroad track, and that if, they do there is danger that a train may come in collision with them and be wrecked. Adequate measures, reasonable in their nature, must be taken to guard against such danger. Independently of any statutory requirement, a jury might find, upon the facts of a case, that it was the duty of a railroad company to fence' its tracks to guard against such danger.” It was certainly within the province of the jury to find in the case at bar that it was the duty of the defendant either by fencing its track or in some other way to guard against the constant danger created by the presence of cattle upon its track. The case was submitted to the jury in a proper charge which left to them the determination of the defendant’s negligence under all the facts, including the running of a train backwards without adequate precautions over an unguarded road where it should have been known that trespassing cattle were likely to be encountered, and none of the points presented on the appeal demands a reversal of the result. The verdict it is true is quite large, but in view of the absolutely helpless condition of the plaintiff and the years of life which probably remain to him it cannot be regarded as excessive.

The judgment and order should be affirmed.

Present — Bartlett, Woodward, Hirschberg and Hooker, JJ.

Judgment and order unanimously affirmed, with costs.  