
    OWEN DONEGAN, Respondent v. JOEL B. ERHARDT, AS RECEIVER OF THE NEW YORK CITY & NORTHERN R. R. Co., Appellant.
    
      Negligence.—Railroads—Liability arising under § 67, title 15, chapter 18, pari 1, R. S., 6th ed., as to fencing and guarding tracks, from the mere want of properly fencing and cattle guarding, for injuries received by passengers or employees in a collision with animals straying on the track by reason of such want.
    
    The plaintiff being a brakeman on the railroad operated by the defendant, received injuries in a collision between the train on which he was employed, and a horse which had strayed on the track in consequence, as was claimed, of the track not being properly fenced and cattle guarded. The plaintiff had a verdict. The case was put by plaintiff’s counsel in the court below, and on appeal (so far as the question of defendant’s negligence is involved) solely on the ground that defendant was liable by reason of its failure to have its road properly fenced and cattle guarded, as required by § 67, title 15, chapter 18, part 1, R. S. (6th ed.) by the mere force of the statute itself.
    
      Held, that no liability rested on defendant for the plaintiff’s injuries from the bare fact of the track not being properly fenced and cattle guarded.
    Before Sedgwick, Ch. J., Freedman and O’Gorman, JJ.
    
      Decided May 7, 1888.
    Appeal "by defendant from a judgment entered upon the verdict of a jury and from an order denying a motion for a new trial, made upon the minutes.
    The facts sufficiently appear in the opinion.
    
      
      Holmes & Adams, attorneys, and George H. Adams, of counsel for appellant, on the questions considered in the opinion, argued:
    I. Without the statute as to fences the railroad company is liable to no one for injuries occasioned through animals coming upon the track. This statute does not extend so far as to support an action by, an employee for injuries so occasioned. Corwin v. N. Y. & Erie R. R.,13 N. Y. 42; Spinner v. N. Y. C. & H. R., 67 Ib. 153; Langlois v. Buffalo, etc., R. R., 19 Barb. 364. This point is absolutely a clean one in this case; no other negligence was claimed or shown; it was expressly and particularly stated by the complaint that all other things were done with care and without negligence. In the recent case of Knight v. N. Y., etc., R. R., 99 N. Y. 25; this statute is discussed in a case where a colt strayed through a defective fence upon the railroad, fell through the ties upon a bridge and hurt himself; the court held that the statute was the only foundation of any liability of a railroad for injury by reason of defective fencing • that the extent of the liability is exactly measured by the statute; and the court says, through Judge Bapallo : “ The statute referred to requires railroad companies to erect and maintain fences on the sides of their roads, but it does not impose upon them a general liability for any consequences which may result from an omission to do so, nor does it leave the question open what liability to third parties they shall be subjected to for such omission, for it defines in express terms the consequences for which they shall be liable to owners of cattle and horses getting on the track.”
    
      Hector M. Hitchings, attorney and of counsel, for respondent, on the questions considered in the opinion, argued:—
    I. The statute compelling railroad companies and their lessees to fence their tracks against cattle is a police regulation for the benefit of the passengers and employees, as well as farmers owning cattle. Corwin v. N. Y. & E. R. R. Co., 13 N. Y. 42, 47; Shepard v. Buffalo & E. R. R. Co., 35 Ib. 641; Staats v. Hudson R. R. Co., 3 Keyes 196; Purdy v. N. Y. & N. H. R. R. Co., 61 N. Y 353; Boone on Corporations, § 253.
    II. The statute being a remedial one is not to be construed strictly, against passengers, employees or farmers, but should receive a liberal construction to effectuate the benign purposes of its framers, and a strict construction only against the railroad company that fails to comply with its requirements. Tracy v. Troy & Boston R. R. Co., 38 N. Y. 433; Brace v. N. Y. C. & H. R. R. R. Co., 27 Ib. 269; Burchfield v. The Northern Central R’way Co., 57 Barb. 589. These last two cases distinctly reverse the case of Parker v. Rensselaer & Saratoga R. R. Co., 16 Barb. 315, which laid down a contrary doctrine, and the statute placing leased roads upon same footing as others completely annuls the force of that decision.
    III. The statute imposes upon railroad companies the duty not only to erect proper fences of the height and strength of division fences, but also to maintain and keep the same in perfect repair. Staats v. Hudson R. R. R., Co., 3 Keyes 196; Spinner v. N. Y. Central R. R. Co., 6 Hun 600; Boone on Corporations, § 253.
    
      
       The provisions of this section were not part of the original Revised Statutes, nor were they inserted in the Revised Statutes by any act amending them. They are found first in § 8 of chapter 282 of the Laws of 1854. Provisions of a similar nature are also found in § 44 of chapter 140 of the Laws of 1850, which was amended by chapter 282 of the Laws of 1854.— Reporters.
      
    
   By the Court.—Sedgwick, Ch. J.

The action was for damages for personal injury of the plaintiff.

The plaintiff at the time of the accident, was a brakeman employed by the defendant, who, as a receiver, was operating a railroad in this state. He was upon a train in the course of his employment, when it was thrown from the track, by running against a horse. The plaintiff was thrown from the car on which he was, and severely hurt.

It was proved, as the jury found, that the railroad company bad not maintained fences on the sides of its roads or sufficient cattle guards, as required by the statute that will be referred to, and that the horse had gone upon the track over places where there should have been sufficient fences and cattle guards.

It was claimed on the trial by plaintiff, that not maintaining fences and cattle guards was a neglect on the part of the company which permitted the horse to go upon the track, and that the horse’s being there was the occasion of the train being thrown from the track.

On the hearing of the appeal it was not argued whether or not, if there was a neglect on the part of the company, the accident was the proximate or remote effect of such neglect.

The statute (§ 67, title 15, ch. 18, part 1, R. S., 6 ed.), after declaring that railroad companies shall erect and maintain fences and cattle guards, proceeds as follows: and so long as such fences and cattle guards shall not be made, and when not in good repair, such railroad corporation and its agents shall be liable for damages which shall be done, etc., to any cattle, horses, etc., thereon.”

The defendant claimed that as before the statute, the law had not made it the duty of the company to do the things afterward required by the statute, after the statute the only actions upon it were those described therein.

I am of opinion that the position of defendant was valid. It is sustained by the principle that when a statute creates a right which did not exist before, and prescribes the remedy for a violation of it, that remedy must be pursued. Stafford v. Ingersol, 3 Hill 41; Almy v. Harris, 5 John. 175; Langlois v. Buffalo & R. R. R., 19 Barb. 364; Knight v. N. Y., L. E. & W. R. R., 99 N. Y. 25.

The plaintiff assumes that the statute created a duty in relation to him. That assumption is negatived by the statute specifying what the consequences of a violation are to be.

This case is not like instances of a neglect which is a public offence, to the commission of which a penalty is attached. In such cases where the duty is to the public, it has been argued that any one especially injured may have an action. It is not necessary to examine such cases. Nor is it like cases where a neglect to do the things specified by the statute was actionable before the statute was passed; for example, the neglect involved in running at a undue rate.

There are cases in which courts have said that the statute was passed to protect the public and travelers. It will be observed that these cases were upon the statute, and the court ascertained the nature of the action given by it or what corporations were liable to such action. It was held that foreign corporations or domestic corporations running upon leased tracks were liable, or that liability existed for any cattle destroyed, even if they had not come from adjoining land. The result was a construction of the statute itself, from considerations in respect of the public or travelers. This construction made the statute liberal and perhaps wider than it would have been made except for these considerations. There was no attention to anything but the statute liability as expressed. It is consistent with these cases to hold, that the policy or practical object of the legislature, was intended to be guarded by the action expressly given.

The opinion of Judge Denio, in Corwin v. The N. Y. & Erie R. R., 13 N. Y. 52, said very broadly, that he was of opinion that the “ statute imposes a public duty upon the railroad corporation, for a violation of which they are subject to indictment, whether individual interests are affected or not. Having imposed this general and public duty, the legislature has next proceeded to declare some of the consequences of its omission.” The case only concerned these declared consequences, and liability was affirmed because of the expression of the statute and not because of any general duty arising from othe earlier part of the section.

For these reasons I am of opinion that the complaint should have been dismissed at the trial.

Judgment reversed and new trial granted with costs to abide the event.

Freedman and O’Gorman, JJ., concurred.  