
    Potter v. New York Cent. & H. R. R. Co.
    
      (Supreme Court, General Term, Fifth Department.
    
    June, 1891.)
    Railroad Companies—Failure to Fence Track.
    A railroad company, in default of fencing its own land, lying along its track, from the track itself, is not liable to its own tenants for loss of cattle straying from such land onto its track.
    Appeal from Monroe county court.
    Action by Frederick B. Potter against the Hew York Central & Hudson River Railroad Company to recover damages for injuries done a horse. From a judgment of the county court affirming a judgment of a justice’s court in favor of plaintiff, defendant appeals.
    Argued before Dwight, P. J., and Macomber, J.
    
      A. H. Harris, for appellant. H. G. Pieree, for respondent.
   Dwight, P. J.

The defendant, as lessee, operating the lines and occupying the real estate of the West Shore Railroad Company, leased to one Hayes a strip of land 10 rods in width, and containing 12 acres, belonging to that company, and lying along-side its tracks in the town of Perinton, which was not separated from the track by any fence. Hayes, in 1886, sublet all but half an acre of the strip to the plaintiff, who occupied it for farming purposes. His horse, which was tethered on the strip for grazing, had broken loose, and wandered onto the track, when one of defendant’s trains came in sight. The horse was frightened by the approaching train, and ran before it, on the track, until he came to a bridge,where befell between the ties, and broke his leg. The engineer stopped the train as soon as possible after seeing the horse on the track, and before the engine reached him. The only question in the case is whether, under these circumstances, the railroad company must fence its own land, lying along its track, from the track itself, or, in default of doing so, be liable to its own tenants for loss of cattle straying from such land onto its track. We think not. There seems to be no American case in point, and the English authorities, under a statute similar to our own, are against the proposition. Roberts v. Railway Co., 4 C. B. (N. S.) 506; Marfell v. Railway Co., 8 C. B. (N. S.) 525; 2 Shear. & R. Neg. § 434. In the case last cited the defendant owned a strip of laud adjoining its right of way, and separated from it only by a fence which had become broken down. On the strip was a tramway, used by the defendant, and which it permitted the plaintiff to use for a consideration. A horse of the plaintiff, drawing a car on the tramway, became frightened by a passing train, and breaking loose from the car, escaped onto the track of the defendant, and was injured. Erle, O. J., said: “It is clear that the defendants are under no obligation to put any fence on their own land. The statute which obliges them to fence against the land of the adjoining owner has no application to their own. If the tramway was without any fence, it is clear that the defendants might lawfully so use it, and if any one chose to have the use of it he would be entitled to it as it was, and would have no right to complain if he found it dangerous, and sustained damage for want of a fence. * * * If the fence was known to the plaintiff to be out of repair, and broken down, arid he chose to hire the use of the tramway, in that state, there would be no contract creating a duty to keep the fence in repair.” This reasoning commends itself to our judgment as correct. The defendant might, no doubt, leavethe strip of land unfenced from the track so long as it was made use of for its own purposes, and, when it rents it to another occupant, the latter must take it as it is, and be content to put it to uses for which it may be safely employed in its unfenced condition. We are unable to see that a case was made of statutory liability on the part of the defendant to the plaintiff, and are of opinion that the judgment of the county court and of the justice must be reversed, with costs.  