
    JOHN BRADY, Respondent, v. THE RENSSELAER AND SARATOGA R. R. CO., Appellant.
    
      Negligence—Fences and cattle-guards— duty of railroad company to maintain.
    
    A cow, owned toy the plaintiff, was left in charge of a hoy, who drove her from plaintiff’s stable to an open lot, adjoining defendant’s track, near a crossing, in the vicinity of which, some of the fences were temporarily and necessarily down, for the purpose of repairing the roadway of defendant; the boy having left the cow for a short time, she strayed upon the track and was killed by a passing train; held, that the defendant was liable.
    
      Bowman v. The Troy and Boston R. R. Co. (37 Barb., 516), distinguished.
    The defendant was bound to erect and maintain fences and construct and maintain cattle-guards at the crossing near which the cow was run over, and having failed to do so, was liable to the plaintiff for the damages sustained by him. The exceptions to this rule are, where it appears that the plaintiff drove his cattle on the road and left them there, or voluntarily permitted them to stray upon the track, or did some positive act increasing the danger.
    Appeal from a judgment, in favor of the plaintiff, entered upon a verdict of a jury, in an action brought and tried in the Albany County Court. The plaintiff, in July, 1872, owned a cow, which, on the day in question, was left in charge of a boy, who, in the afternoon, drove her from plaintiff’s stable down to an open lot adjoining defendant’s track, in the northern part of the city of Albany, near a crossing known as Holligan’s. In the vicinity of this crossing, defendant’s roadway 'was being improved and repaired, and some of the fences at the crossing were temporarily and necessarily down for that purpose. The boy left the cow.for a short time, and she strayed upon the track, either upon the crossing or south of it, just as a regular train arrived at this point, and was struck and killed, and the engine and cars were thrown from the track and injured. At the close of plaintiff’s testimony, defendant moved for a nonsuit, on several grounds stated, and again renewed said motion at the close of defendant’s testimony, but the motions were denied, and the defendant excepted. The jury found a verdict in favor of the plaintiff, for fifty dollars, and judgment having been duly entered, the defendant appealed.
    
      George W. Miller, for the appellant and defendant.
    
      Anson Bingham, for the respondent and plaintiff.
   Miller, P. J.:

In Bowman v. The Troy and Boston Railroad Company, it was held, that, where one suffered his cow to be at large in a public street, and on the track of a railroad in a city, apparently alone and unattended, with no one to take charge of her, and where it did not appear that she was in the vicinity of the plaintiff’s residence, or had been previously taken care of by him, or had escaped without his fault, or was lawfully traveling along the street, that he could not recover for injuries to the cow, happening through the negligence of the railroad company. This was an extreme case, and differs essentially from the case at bar, for here the cow was kept and fed in the plaintiff’s stable, and only allowed to go out in charge of a boy employed for that purpose, and then, not very far from the plaintiff’s residence. The plaintiff had taken every precaution to guard against danger or accident, and it was the absence of the boy, without the knowledge or consent of the plaintiff, which enabled the cow to stray upon the defendant’s track, where she was killed. There is a class of cases which holds, that, where the defendant was in default, the negligence of the owner, in permitting the animal to run at large in the highway, or to trespass upon the premises of a neighbor, is not a defense.

I am inclined to think that the judgment may he upheld within the principle here laid down, and that the temporary absence of the boy in charge of the cow, was no defense. Even if it may properly be urged, that there was a question of plaintiff’s negligence in the case, I am not prepared to say that it was not for the jury to determine, under all the circumstances, whether there was negligence. But, independent of these considerations, I think that the case may properly be disposed of upon another ground. The defendant was bound to erect and maintain fences, and to construct and maintain cattle-guards at their crossing, near which the cow was run over. This had been done, but when the accident occurred, the fence was temporarily removed, for the purpose of repairing the •track, and there was evidence to show that the cattle-guard, at the crossing, was defective and insufficient, so that cattle could walk over the same. The defendant was clearly liable within the principle laid down in Corwin v. The N. Y. & E. R. R. Co., by Denio, J., that the design of the section was to require the railroad company to inclose their tracks with substantial fences, and to guard them by ditches, called cattle-guards, and that one method provided for securing that object, was the provision charging the companies which had disregarded the statute, with damages for all injuries done to animals, and that it was not material from whence, or under what circumstances, the animals came upon the track, provided they were enabled to get there by the absence of cattle-guards. As was said in Bradley v. N. Y. & E. R. R. Co.: “It is no excuse that the cattle, horses, etc., were at large in violation of law.” The exceptions to this general rule are, where it appears that the plaintiff drove his cattle on the road and left them there, or did some positive act increasing the danger of his cattle, or in a ease where a party voluntarily permits his cattle to stray upon the railroad track. As the case stood, there was no question of contributory negligence to submit to the jury, for even if the plaintiff had known of the defects of fence or cattle-guards, it would have been no defense. The point is not distinctly taken, that the provision of the railroad act cited, does not apply to cities and villages, and for that reason the defendant was excused. But if this can be urged, it is completely answered by saying that, in the cases which sustain this doctrine, it appeared that no fences or cattle-guards had been made, and that they could not be made without creating nuisances or interfering seriously with the owners of property in villages, while here, they were conceded to be necessary, and were actually made by the defendant. While the rule laid down might very properly apply to a populous city or village, or such portion of it as was built up, the reason of it would have no application to the outskirts of a city or village, where the land was open and not occupied with buildings. But the rule has been restricted and it is held, that the statute as to cattle-guards, at road crossings, applies as well to streets in villages as to country highways. There was no error in any of the rulings upon the trial, and the judgment must be affirmed, with costs.

Present—Miller, P. J., Bookes and Boardman, JJ.

Judgment affirmed, with costs. 
      
       37 Barb., 516.
     
      
       Munch v. N. Y. C. R. R. Co., 29 Barb., 647 ; Suydam v. Moore, 8 Barb., 358.
     
      
       S. L. of 1854, 611, § 8.
     
      
       13 N. Y., 49.
     
      
       34 N. Y., 432.
     
      
       Corwin v. N. Y. & E. R. R. Co., supra; Poler v. N. Y C. R. R. Co., 16 N. Y., 480.
     
      
       Shepard v. B., N. Y. & E. R. R. Co., 35 N. Y., 644, 645.
     
      
       Brace v. N. Y. C. R. R. Co., 27 N. Y., 269.
     