
    Diamond Brick Co. v. New York Cent. & H. R. R. Co.
    
      (Supreme Court, General Term, Second Department.
    
    December 10, 1889.)
    Railroad Companies—Farm Crossings—Gates.
    Under 2 Rev. St. N. Y. (7th Ed.) p. 1604, § 2, providing that railroad companies-shall maintain fences with openings, bars, or gates at farm crossings, “for the use of the proprietors of the land, ” where a gate is so maintained by a railroad company it is the duty of the owner of the land to close the gate after using it.
    Appeal from circuit court, Rockland county.
    Action by the Diamond Brick Company against the Mew York Central & Hudson River Railroad Company, for the alleged negligent killing of plaintiff’s horse. Judgment for plaintiff, and defendant appeals.
    Argued from Barnard, P. J., and Pratt, J.
    
      Ashbel Green and Herbert E. Kinney, for appellant. George W. Weiant,. for respondent.
   Barnard, P. J.

The defendant bperates the West Shore Railroad. The-railroad passes through the land of Mrs. Reed. The company built a fence along its lands as required by statutes, and made a gate in the fence at one part for a farm crossing. In September, 1886, the plaintiff had a horse on Mrs. Reed’s land by her permission, and on the occasion in question the horse-passed through the gate, which was open, and was.killed by the defendant’s train. The evidence is very conflicting as to the fact whether this gate was commonly or only occasionally open, and as to the fact whether any one but the occupants and lessees of Reed’s farm used it. There was evidence given, by the defendant tending to show that the employes of the company constantly shut the gate, sometimes as often as four and five times in a day. There was proof that the defendant’s track-walker shut the gate twice on the day of the accident, the last time in the afternoon of the day. The horse was seen alive at about 3 o’clock in the afternoon, and was killed a little after 5 o’clock of the same day. Under this state of the evidence the court charged the jury that Mrs. Reed owed no duty in reference to keeping the gate closed. This was erroneous. The law directs the railroad to fence, but when the land was ■cut, one part from another, openings, bars, or gates were to be made “for the use of the proprietors of the land.” These proprietors are bound to keep the gates shut when not open for use in passing over the railroad. It is a private gate to be kept in repair by the railroad company, but which is to be used solely by the proprietors of the land. If the company shut the gate after midday, and it was left open by Mrs. Reed subsequently, a direction to the jury that she was not bound to shut the gate after using it put a duty upon the railroad company which was not required by the law. The case of Shepard v. Railroad Co., 35 N. Y. 641, was decided upon facts arising before the railroad law was passed which bound railroad companies to fence their track. In Spinner v. Railroad Co., 67 N. Y. 153, the defendant had adopted a private ■crossing, and was accustomed to shut the gate at night, early or late, as its business necessities required. The company, therefore, left the gate open, and was responsible for an accident to the owner’s cattle. If the gate was shut by the defendant a few hours before the accident, there was no proof of any negligence of the defendant. The judgment should be reversed, and a new trial granted, costs to abide event. All concur. 
      
       2 Rev. St. N. Y. (7th Ed.) p. 1604, § 2.
     