
    Mason Seeley, Respondent, v. The Lake Shore & Michigan Southern Railway Company, Appellant.
    (County Court, Chautauqua County,
    March, 1910.)
    Justices of the peace—Appeal and error — Review. Presumptions — Burden of showing error: Questions of fact, findings and verdicts — Sufficiency of evidence to support verdicts and findings.
    Public policy requires that the judgments of justices’ courts should not be reversed or modified unless the decision of the justice or jury could not reasonably have been made; and on appeal they will be sustained by every reasonable and warrantable intendment.
    Where, in an action in justice’s court to recover for the value of plaintiff’s bull killed on the right of way of the defendant railroad company, the proof is that defendant had erected a substantial wire fence along its right of way with a gate leading from the pasture in which was the bull; and the evidence is sufficient to justify the inference and determination that the gate was structurally defective and a space created thereby was sufficient to permit the passing of the hull on defendant’s right of way and its killing by defendant’s locomotive is admitted, the defendant is liable as for a negligent disregard of section 32 of the Railroad Law, and a judgment in plaintiff’s favor will be affirmed, with costs.
    Appeal from a judgment of a justice of the peace.
    J. L. Hurlbert, for appellant.
    Edson & Crosby, for respondent.
   Ottaway, J.

This is an appeal taken from a judgment of a justice of the peace of Chautauqua county, awarding damages to the plaintiff against the defendant for the value of a bull killed upon defendant’s right of way. The evidence discloses that this animal was in a pasture adjoining the defendant’s railroad. The defendant had erected a substantial wire fence along the line of its right of way, with a gate leading from the pasture upon the defendant’s railroad. There is evidence tending to show that this gate was out of repair.

Testimony was given upon the trial that the gate was designed to operate by means of two hinges fastened to the gate and connecting the gate to a post by two hooks. A witness testifies that the upper hinge simply rested upon the hook, and that any pressure upon the gate would cause the gate to tilt and leave a space of from two to three feet between the post and the gate. There was sufficient testimony in the case from which it could he inferred and determined by - the trial court that this condition was structural ■and not the result of accident. The space thus created would he sufficient to permit the passage of the animal upon the defendant’s right of way. Erom this testimony the trial court has found the essential elements of a cause of action in cases of this character. It has long been the uniform practice of this court in reviewing judgments and proceeclings had before a justice of the peace to view them with indulgence and to sustain them by every reasonable and warrantable intendment. Shoemaker v. Spencer, 54 H. Y. 366.

Public policy requires that the judgments and decrees of justices’ courts should not he reversed or modified unless the decision of the justice or jury could not reasonably have been made. International Tailoring Co. v. Bennett, 113 App. Div. 476; Brewer v. Califf, 103 id., 138.

Section 32 of the Railroad Law of the State of Hew York provides: “ Every railroad corporation * * * shall * * * erect and thereafter maintain fences on the sides of its road of height and strength sufficient to prevent cattle, horses, sheep and hogs from going upon its road from the adjacent lands with farm crossings and openings with gates therein at such farm crossings whenever and wherever reasonably necessary for the use of the owners and occupants of the adjoining lands, and shall construct where not already done, and hereafter maintain, cattle guards at all road crossings, suitable and sufficient to prevent cattle, horses, sheep and hogs from going upon its railroad. So long as such fences are not made, or are not in good repair, the corporation, its lessee or other person in possession of its road, shall be liable for all damages done by their agents or engines or cars to any domestic animals _ thereon. When made and in good repair, they shall not he liable for any such damages, unless negligently or willfully done.”

Frequent adjudications have been made by the courts of this State defining the application of this statute to facts presented for consideration. Recoveries have been uniformly sustained where the evidence disclosed a violation or a negligent disregard of this statute by railroad companies.

The defendant in this case admits the presence of the animal upon its right of way opposite the pasture where it had been and its killing by the defendant’s locomotive. It insists that the proof is not sufficient to establish a liability upon the part of the defendant by reason of its failure to keep its fence in repair or to establish the -fact that the presence of the animal upon its right of way was due to a defective condition in the fence of defendant. It was incumbent upon the plaintiff to establish these facts before he could recover. The justice, by his judgment, has determined that these facts were established. The evidence seems to sustain this proposition.

The further claim is made by the defendant that, if any defect existed,- no notice, either actual or constructive, had been given the defendant of this condition. The evidence in the case warrants the inference and determination that .the defect was structural and had existed for a considerable time, and that the defendant ought, in the exercise of rea- , sonable care, to have known of this condition, and was negligent in not discovering and correcting this condition. It cannot be said that a gate adjoining a pasture containing 'stock, that admits of an opening of from two to three feet upon the application of moderate pressure, is of sufficient strength to prevent cattle from going upon railroads; and it cannot be said that such a fence is a proper structure in such localities.

>The judgment in this case must be affirmed, with costs 1 to respondent. Dayton v. N. Y., L. E. & E. E. E. Co., 81 Hun, 284; Corwin v. N. Y. & E. R. R. Co., 13 N. Y. 42.

Judgment affirmed, with costs to respondent.  