
    John Hyatt, Resp’t, v. The New York, Lake Erie & Western Railroad Co., App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed June 23, 1892.)
    
    Railroad—Fences—Injuries to animals.
    Near the point of the accident in question, a railroad bridge, defendant’s road runs within about 100 feet of the Alleghany river and past a sawmill and mill yard where there were platforms for loading lumber. Plaintiff’s colt was pastured on the other side of the river, but broke from the pasture, wandered about half a mile to a fording place and there crossed and came upon the mill grounds, from whence it wandered upon defendant's track, and was found dead upon the bridge. Reid, that under the evidence defendant was under no duty to fence the railway at the point where it passed upon its land, and the facts being undisputed the court erred in submitting that question to the jury.
    Appeal by the defendant, the New York, Lake Erie & Western Railroad Company, from a judgment of the supreme court, entered in the clerk’s office of the county of Cattaraugus, on the 9th day of October, 1888, in favor of the plaintiff, for $440.62, damages and costs, and also from an order entered in the same clerk’s office, on the 13th day of January, 1892, made upon a case and exceptions, denying the defendant’s motion for a new trial, together with the judgment entered on such order.
    
      George F. Brownell, for app’lt; Ansley & Davie, for resp’t.
   Macomber, J.

This action was brought under § 8 of chapter 282 of the Laws of 1854, which makes it the duty of every railroad company to erect and maintain fences on the sides of its road, of the height and strength of a division fence; and, further, that so long as the fences shall not be so erected and kept in good repair, the railroad corporation and its agents are made liable for damages which may be done by the engines or agents of the corporation to any cattle, horses, sheep or hogs upon the railroad. But the statute also provides that no corporation shall be required to fence the sides of its road, except when such fence is necessary to prevent such animals from getting on the tracks from the lands adjoining the same.

This action was brought in the year 1883 for the value of a colt found dead in a bridge crossing a creek which was spanned by the defendant’s railroad, about 500 feet east of the railway station of the defendant at Great Valley, in Cattaraugus county. The allegation of the complaint was that the colt had passed over and upon the railroad track of the defendant for want of a cattle guard at a roadway crossing, just east of the railway station, and through the omission of the defendant to erect a proper fence along its tracks on the south side thereof, easterly of such roadway.

The point is made by the learned counsel for the appellant that the only charge against the defendant in the complaint was the omission to erect cattle guards upon this highway. On inspection of that pleading, however, it will be seen that while the language of it is somewhat ambiguous, yet it is susceptible of the construction which the learned trial justice at the trial placed upon it There is, therefore, in our judgment, no sufficient ground stated for the reversal of the judgment and order for want of a sufficient pleading, although the colt, it is shown, passed upon the railway track, not upon the highway, but easterly thereof, as hereinafter stated.

The defendant’s railway at Great Valley Station runs nearly parallel to the north bank of the Alleghany river, at a distance therefrom varying from one hundred and eighty feet at the bridge, where the colt was found, to one hundred feet, measured at the railway station. This colt, with three horses owned by the plaintiff, was pasturing on the south side of the river, and was so separated from the lands immediately adjacent to the railway by the width of the river, which is shown to be at that point 280 feet. There existed a sawmill between the river and the station, around the southerly end of which the roadway above mentioned passed. Between the sawmill and the main track of the railway there was a long platform for loading lumber which, according to the map in evidence, is something over three hundred feet in length, and which came, at the eastern end thereof, within about fifty feet of this roadway.

To the east of the roadway and of the sawmill there was a mill office, so called. Between this mill office and the railway, and on the east side of the roadway, was a loading platform, which was used for all shipping purposes, except for the loading of lumber, which was done on the platform on the west side of the roadway.. The' space between the platform and roadway to the east for a distance of about five hundred feet, it was shown by several witnesses,, was occupied as a sort of mill yard for the storage of saw logs. The plaintiff himself testified that the soil there was rotten; that it was a millyard with chips and sawdust, coal and cinders, and such like all along the south side of the platform. This colt and the three horses being pastured on the south side of the Alleghany river, broke from their pasture and wandered to the west for about a half a mile, and then crossed the river at a fording place, and came upon the lands in the vicinity of the sawmill on the north side of the river, and thence travelled northeasterly, past the mill office, and immediately to the east of* the loading platform, a distance of about one hundred feet from the roadway. They then passed upon the first track of the defendant, which was used as a switch track for the purpose of bringing cars loaded with lumber from the platform for-loading lumber connected with the sawmill, and from that point wandered to the east, apparently grazing, and came near to this railroad bridge spanning the creek, which empties into the river, where three of them turned off from the track, while the one that was killed was either hit and thrown by an engine of the defendant and lodged between the beams of this bridge, or voluntarily, without being hit, made a plunge into the bridge, where it was found dead in the morning after the escape from the pasture on the south side of the river. This bridge is five hundred feet east of the railway station. The lumber switch track runs east of the station about two hundred and fifty feet. There is another switch on the north side of the main track, on the north of the railway station, called the hack switch, which comes into the main track at a distance of about seventy-five or eighty feet from the bridge.

The loading platform is about ninety or a hundred feet in length. The learned justice at the trial properly construed these statutes as not requiring the erection by the defendant of fences, where the same were not necessary for the purpose of turning horses, cattle, sheep and hogs from the railway lands.

But the question of the necessity of the erection of such a fence at the place where these horses were shown to have passed upon the railway lands was submitted to the jury.

From the necessity of business, many places adjacent to railways, such as railroad stations, shipping yards, and the like, were evidently not contemplated by the legislature in the statute above mentioned, as described in the case of Dolan v. N, D. & C. R. R. Co., 120 N. Y., 571; 31 St. Rep., 852.

Where the facts are undisputed, the question of erecting a fence at such points is one of law, and we think it was incumbent upon the circuit court in this instance to decide it as a question of law, and not to have submitted it to the judgment of the jury as a question of fact. At the place where the horses passed upon the railway lands, which was within a space of five or ten feet from the east end of the loading platform, it is shown that the business of the corporation required that there should be this open space unfenced, for the purpose of serving the public conveniently in permitting the free access of shippers in approaching and departing from the loading platform with their teams. Between this platform and the railway bridge where this horse was found dead, a distance of about four hundred feet, the space, it was shown by entirely credible evidence, had been, before and after this accident, used by the company for the storage of saw logs. Between this storage place and the pasture on the south side of the Alleghany river, from which the horses escaped, was what would apparently be considered, an insurmountable obstacle to the escape of the horses from the south side of the river.

There is evidence from which we may derive the conclusion, that immediately opposite the place where these horses passed upon the railway company’s lands the river was not fordable, for it is shown that the horses wandered to the west to a ford for about half a mile to a point where they escaped from the pasture. The jury, therefore, as it seems to us, had no lot or part in the decision of this question, for it was not for them to speculate as to whether, if a fence had been erected to the east of the loading platform, the horses might not have gone upon the defendant’s land. It is very doubtful whether or not, under this evidence, the colt was in fact struck by a locomotive.

It is clear that, under this statute, if he was merely frightened by the approach of the engine, and plunged upon the bridge and there met his death without being struck by the locomotive, no recovery could be had in this action. The learned justice in denying the motion for a new trial admits that the animal, when found in the morning, showed no marks of a severe concussion with the locomotive, though there is a suggestion, not proof, in some of the testimony that his neck was broken. The position of the colt, which was lengthwise of the bridge, would go far to show that hé had not been thrown there by the pilot of the locomotive, but that he was so caught within the timbers' from a voluntary plunge. Although this is one view of the evidence, as it is spread upon the record before us, we should hardly, however, feel inclined to reverse the judgment upon this ground alone, for there was some evidence from which a deduction, not unreasonable, might be made, that inasmuch as none of his tracks were found for a space of about eight or ten feet west of the bridge, the colt was carried that distance by the locomotive. But for the reason that under" the evidence there was no duty laid upon the defendant to fence the railway at the point upon which the horses passed upon its land, we think the judgment and order should be reversed and a new trial granted.

Judgment and order appealed from reversed and a new trial granted, with costs to abide the event

Dwight, P. J., and Lewis, J., concur.  