
    Eugen Ham, Respondent, v. The Newburgh, Dutchess and Connecticut Railroad Company, Appellant.
    
      Railroads — cattle guards — bridge.
    A railroad bridge over a stream, on the side of a highway at a railway crossing, some forty feet long and six feet above the water, having a top consisting of ties seven inches wide and six inches apart, is not such a cattle guard as railroad companies are required to maintain, at the crossing, by the railroad, of a highway.
    Appeal by tbe defendant, tbe Newburgb, Dutcbess and; Connecticut Railroad Company, from a judgment of tbe Supreme Court in favor of tbe plaintiff, rendered at tbe Dutcbess County Special Term on a trial by tbe court without a jury, and entered in tbe office of tbe clerk of Dutcbess county on the 26th day of October, 1892.
    Tbe action was brought to recover damages for a horse belonging to tbe plaintiff, killed through injuries received in entering upon tbe defendant’s railroad track from a highway at a point where it was alleged tbe defendant negligently failed to construct and maintain a cattle guard.
    The evidence tended to show that tbe plaintiff was a farmer, and that tbe railroad crossed a highway on bis land ; that his fences were in good fan order; that one of bis horses got out of the pasture and wandered from tbe highway on to a railroad bridge, and proceeded about ten feet along tbe bridge, and then fell off. Tbe defendant did not maintain a technical cattle guard at this point, but claimed that tbe bridge constituted a sufficient guard. This bridge was over a stream at tbe side of tbe highway crossing; it commenced in tbe highway, and extended about forty feet therefrom ; the top of the bridge was about six feet above the water, and was composed of ties seven inches wide and six inches apart, so that on the top the bridge presented a. level surface.
    The trial court found that the defendant had never constructed or maintained a cattle guard on its track at the highway crossing as required by law; that tlie injury which resulted in the death of the plaintiff’s horse was caused by the negligence of the defendant in neglecting: to construct and maintain a cattle guard as required by law; and that the plaintiff was in no way guilty of contributory negligence; and decided, as matter of law; that the plaintiff was entitled to judgment for $250, with interest and costs.
    
      W. S. JEmo and Milton A. Fowler, for the appellant.
    
      .Haekett & Williams, for the respondent.
   Pratt, J.:

The structure which defendants call a cattle guard was in no sense such a one as their duty required. Cattle were more likely to be enticed upon the track than to be turned back. Had a proper guard been constructed, the accident would not have taken place. The duty which the company violated was one owing to the public. Aqy person injured can recover his damages.

The judgment must be affirmed, with costs.

DyKmaN, J., concurred ; Barnard, P. J., not sitting.

Judgment and order denying new trial affirmed, with costs.  