
    Eugene Ham, Resp't, v. The Newburgh, Dutchess & Connecticut Railroad Co., App'lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed May 8, 1893.)
    
    Railroad—Cattle guards.
    An open bridge upon which the railroad runs, commencing in a highway and constructed of string pieces and cross ties with open spaces.of six inches, is in no sense sucir a cattle guard as the statute requires a railroad to construct, and any person injured by the failure of the company to perform its duty in this respect can recover his damages.
    Appeal from judgment in favor of plaintiff, entered upon the decision of the court on a trial without a jury.
    This action was brought by the plaintiff to recover damages from the defendant for an injury received by his horse while upon the railroad track of defendant; the injury was such that it became necessary to kill the horse.
    The defendant's railroad crosses a public highway on the farm of the plaintiff. No cattle guard has ever been constructed at this crossing, although" the railroad has been in operation for many years.
    About the 9th of August, 1891, the plaintiff, to provide his horses with better pasture, decided to change them from a lot on the north to one on the south side of said highway, and before doing so he had the fences between the highway and lot put up in good condition. The fence was from four to six feet high. After the fences had been repaired, the horses were changed to the lot on the south side of the highway, and within a few days thereafter they escaped from this lot into the highway, and one of them entered from the highway on to the track and railroad bridge of the defendant. He probably stepped through a hole in the bridge, and then fell off, because his shoulder joint was wrenched or split out, and the bones broken.
    The defendant’s answeradmits that it has never constructed or maintained what it terms “a technical cattle guard,” but in lieu thereof it has constructed and maintained a railroad bridge, which it claims served for the purpose of a cattle guard.
    This bridge commenced in the highway and is constructed of string pieces, upon which are laid sawed cross ties, about seven ¿nches top face, and placed about six inches apart.
    
      W. S. Eno (Milton A. Fowler, of counsel), for app'lt; Hackett & Williams, for resp't.
   Pratt, J.

The structure which defendants call a cattle guard was in no sense such an one as their duty 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. Any person injured can recover his damages.

Judgment affirmed, with costs.

Dvkman, J., concurs; Barnard, P. J., not sitting.  