
    Hance et al. v. The Cayuga and Susquehanna Railroad Company.
    When a railroad corporation has constructed and maintains proper fences and cattle guards, as required by statute, its absolute liability for damages to cattle upon its track ceases; and though guilty of negligence in keeping the cattle guards effective, it is not responsible to the owner of cattle who is himself chargeable with negligence in allowing them to get upon the track.
    So held, where the corporation was negligent in not removing snow which filled up the cattle guards so that they made no substantial impediment to the passage of cattle. The owner of cattle escaping from a yard on to the track under such circumstances is chargeable with negligence, and cannot recover for an injury, though guilty of no actual carelessness in suffering them to escape.
    Otherwise, it seems, if the cattle, being lawfully driven along the highway, had made their way on to the track in consequence of the neglect of the railroad company in not clearing its cattle guards of snow: Per Baloom, J.
    Action brought before a justice of the peace to recover the value of a cow. It was admitted by the "defendant that on the night of the 11th of December, 1854, the defendant’s locomotive ran over and killed the plaintiffs’ cow, while on the railroad belonging to the defendant; and that the plaintiffs purchased the cow of Harvey Stevens. The cow was very breachy and would jump and break fences, which was the reason Stevens sold her to the plaintiffs, who were drovers. She was driven from the premises on the 11th of December to the tavern of one Taylor and there put into a yard with five other cattle. The yard was about fifteen rods from a cattle guard, where a highway crossed the railroad. The cow .got over the bars to the yard, by breaking the two upper ones, into the highway, and then went on to the cattle guard and walked over or through it upon the railroad, and was killed by the locomotive, on the railroad, about three-fourths of a mile from the cattle guard.. There, had been so severe, a snow storm that the regular trains could not run on the railroad for a day or two. When the'cow walked through or over the cattle guard it was filled up with snow under the slats, The snow plow ahead of the locomotive had taken off the snow even with the, top of the slats, and from the upper side of the rails on the road, The eow sank into the snow two or three feet, in walking through the cattle guard. Taylor testified that he never knew of cattle passing the cattle guard, before this cow went through or over it, and that the slats of the cattle, guard were five or six inches apart and seven feet long.
    One Baldwin (who worked on the railroad repairing the timbér) testified that he lived three or four rods from the cattle guard; that he saw it some days after the cow was killed; that the slats to it were open; ■ that he did not know but the snow there came up to the under side of them; that he saw the cow the night she was killed; that she was in his lot or yard; that that there was a gate from his yard to the railroad, which was open that night; that the cow went out of his yard on to the railroad; that the railroad was fenced, and that the gate belonged to the railroad fence; also, that the cow might have come into his yard from the railroad or the highway; that there had been a great and severe snow storm; that he was sick and got his father to go and see if it was his (witness’) cow that had gone on to the railroad track. The engineer who ran the locomotive testified that the cow was killed at about 8 o’clock in. the evening; that when he first saw her she was on the south side of a bridge; that he whistled down the brakes ; that the.head-light on the locomotive was lighted; that it was impossible to prevent killing the cow; that she was so near the train when discovered it could not be prevented. Two witnesses testified they were acquainted with the cattle guard; that it was in good repair, or .in good order, though it was partly filled .up with snow at the time the cow was killed. One of them said the railroad was fenced from the cattle guard to the place where the cow was killed, and he had never known of cattle passing over the cattle guard. •
    There was a good fence around Taylor’s yard, from which the cow escaped, into the highway, and none of the other cattle in the yard got out that night.
    At the close of the plaintiff’s evidence, the defendants moved for a nonsuit, on the ground that the plaintiffs had not made out a cause of action; and second, that there had been no negligence shown on the part of the defendants; and further, that the plaintiffs themselves had been guilty of negligence; which motion the justice refused to grant.
    The justice rendered a judgment in favor of the plaintiffs for $25 damages, besides costs, which was reversed by the. Tompkins County Court. The Supreme Court reversed the judgment of the County Court, and affirmed that of the justice, on the sole ground that the justice did not certify that he returned all the evidence given on the trial before him. The return set forth the evidence in detail: first, that given by the plaintiffs, and. then that given by the defendants, and at the end thereof was a statement that “ the evidence here closed,” And after stating the judgment, the justice said: “I hereby certify that the foregoing are all the proceedings had before me in this cause.”
    The case was submitted to this Court upon printed briefs.
    
      Benjamin G. Ferris, for the appellant.
    
      Jerome Rowe, for the respondents.
   Balcom, J.

This court decided, in Orcutt v. Cahill (24 N. Y., 578), that the return of a justice of the' peace to an appeal from a judgment, under the Code, must contain all the testimony received by him in the cause; and that where a justice’s return sets forth the evidence in detail, it is to be considered as stating the whole testimony, unless the contrary distinctly appears. That decision shows that the judgment of the Supreme Court, in this case, cannot be sustained on the ground that the justice of the peace did not certify that he returned all the testimony received by him in the cause.

The defendants had fenced their railroad where the plaintiffs’ cow was killed, and had constructed and maintained a cattle guard at the highway crossing, where she went upon the railroad ; and the evidence fails to ' show that the fence was not “ of the height and strength of a division fence,” or that the cattle guard as made and maintained, was not “ suitable and-sufficient to prevent cattle and animals from getting on to the railroad.” Two or three witnesses, who lived near it, testified they had never known cattle passing over it, and no witness pretended any cattle had ever gone over or through it before the plaintiffs’ cow walked through it; and the evidence is uncontradicted, that she passed through it-in consequence of its being filled' up with snow. There had been so great and severe a snow storm as to prevent the regular trains of cars running on the railroad for a day or two. The snow had been removed from the rails and the top of the cattle guard, but it remained in and under the same and up to the under side of the slats of the guard. The justice was probably satisfied that the defendants were guilty of negligence in not removing the snow from underneath the slats of the cattle guard. But that conclusion, however well sustained- by the evidence, did not justify him in giving judgment in favor of the plaintiffs, if their cow escaped from Taylor’s yard and went to the railroad by reason of their own or Taylor’s negligence. It is only before the requisite fences and cattle guards are" duly made, that a railroad company and its agents are made liable by statute for all damages done by their agents or engines, to cattle, horses or other animals thereon notwithstanding the negligence of the owner cooperates in producing, the damages. After such fences and guards are duly made and maintained, the corporation is not liable for any such damages unless negligently or willfully done (Convin v. The N. Y. and Erie R. R. Co., 3 Kern., 42); and then the person sustaining such damages by reason of the negligence of the corporation, cannot recover if his own negligence in any way concurs in producing the damages.

This court decided in Munger v. The Tonawanda R. R. Co. (4 Comst., 349), that where the statute does not apply, an action against a railroad company, for negligently running their engines or cars against or over cattle and killing or injuring them on their railroad, can not be sustained if the wrongful act or negligence of the owner cooperated with the misconduct of the company to produce the injury to the cattle. Also that when cattle escape from the enclosure of the owner and stray upon the track of a railroad, they are to be regarded as trespassing upon the lands of the railroad company, and that the law charges the owner of the cattle with a wrongful or negligent act, if they stray from his enclosure and go upon lands appropriated by a railroad corporation, although his enclosure is kept well fenced, and he is guilty of no actual carelessness in suffering them to escape.

According to that decision the plaintiffs were clearly guilty of negligence, in suffering their breachy cow to escape from Taylor’s yard and go to the railroad, which cooperated with the defendants’ negligence to produce her death; and as the defendants’ negligence was their omission to remove the snow from underneath the cattle guard, through which the cow walked from the highway on to their railroad and not their failure to construct and maintain one there, sufficient, when not filled up with snow, to prevent cattle and animals from getting on to the railroad, the plaintiffs were not entitled to recover.

If the plaintiffs had been properly driving their cow along the highway, and she had walked over or through the cattle guard on, to the railroad by reason of the omission of the defendants to remove the snow that was in and under the slats of the guard, the case would have been different, and they would have been entitled to recover. But as the case is, the cow went upon the railroad track in consequence of their own as well as the defendant’s negligence, and they should not have recovered.

The justice should have nonsuited the plaintiffs or given judgment in favor of the defendants; and the County Court did right in reversing his judgment.

It follows that the judgment of the Supreme Court should be reversed and that of the County Court affirmed, with costs.

All the judges concurring,

Ordered accordingly.  