
    Christopher Martin, Respondent, v. The New York Central & Hudson River Railroad Co., Appellant.
    (Supreme Court, Appellate Term,
    May, 1897.)
    Railroads — Negligence — Fences.
    In an action to recover damages for the killing of cows at a railroad crossing, it is error for the court to charge that a railroad passing through a district in the nature of a village is under an implied duty to construct a sufficient obstruction across highways or roads, and to refuse to charge that the posting of flagmen, the placing of gates or other obstructions on the highway at railroad crossings, or the giving of special and personal notice, was not required by law, and that the omission thereof did not charge the company with negligence.
    Appeal by the defendant from a judgment of the Tenth District Court.
    F. Loomis (W. W. Adams, of counsel), for appellant.
    Walter Cox, for respondent.
   McAdam, J.

The plaintiff, a milkman, was the owner of a number of cows which he was driving on a public highway known as the Kingsbridge road. This highway crosses the tracks of the defendant’s railroad, and at the crossing two of the plaintiff’s cows were struck and killed by a train of defendant’s cars. The action is to recover the value of the cows, ■ and the jury found for the plaintiff.

The justice charged the jury that the statute imposes upon a railroad company the duty of fencing its road with sufficient fences to turn cattle, and further instructed them that, aside from the statute, a railroad passing through a district in the nature of a village was under an implied duty to. construct a sufficient obstruction across highways or roads.

As the failure to keep up fences was. not the proximate cause of the killing of the cows, that portion of the charge relating to fences was irrelevant; and the instruction that the defendant was under -a duty to construct obstructions across the highways where the accident occurred was erroneous.

The defendant then requested the court to charge that the posting of flagmen, the placing of gates or other obstructions -on the highway, at railroad crossings, or the giving of Special or personal notice, was not required by law, and that the omission thereof did not charge the defendant with negligence. ' The court refused so to charge, and the defendant’s counsel excepted. The exception is well taken.

The defendant was under no obligation to place or maintain gates at the crossing, or to station a flagman there (Weber v. N. Y. C. & H. R. R. R. Co., 58 N. Y. 451, 459), unless directed so to do by order of the court upon application of the local authorities. . 2 R. S. (9th ed.) 1270, § 33. There is a provision of the statutes in regard to “ cattle-guards,” in reference to which Brace v. Railroad Co., 27 N. Y. 269, relied on below, was decided;, but these guards are not designed to prevent cattle crossing the tracks ■ of a railroad where it runs over a highway, but to stop cattle from wandering upon-the tracks on the line of the railway; so that the principle decided- in .that case has no material application here. .

If the justice had submitted the question of negligence to the jury, leaving them to determine it from all the circumstances of the case ■—■ the absence of gates or obstructions, of a flagman, or of warning'of any kind;- the rate of speed at which the train was going, and the degree of care taken or omitted by - the respective parties on this particular occasion — a question different .from the one before us would have been presented. ■ The difficulty is that the binding instruction given and the request declined, made the mere omission of certain special precautions in, and of itself, evidence of negligence against the defendant sufficient to charge-it, when it was not necessarily so. "

Bor . these reasons the judgment must be reversed and- a new trial ordered, with costs to the appellant to abide the event.

Daly, P. J., and Biscitoff, J., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event. •  