
    John J. Mentges v. The New York and Harlem Railroad Company.
    A man cannot recover damages for injuries occasioned to his property by the negligence of another, when ho has himself been guilty of an act of negligence that contributed to (lie accident.
    ■The horse of the plaintiff escaped from his stable at night, and fell into a cut in the public highway through which the railroad track of the defendants passed.
    
      Held, that it was the duty of the plaintiff so to secure his horse that he could not stray into the pubiie streets, and that, if ho escaped and any accident occurred to him in consequence thereof, the plaintiff must suffer the consequences.
    Whether tho defendants would otherwise have been rendered liable, by reason of their failure to put a fence along the line of the out through which their road passes, qumre.
    
    Appeal by defendants from a judgment of tbe-Seventh. Dis; trict Court. This action was brought to recover damages for the loss of the plaintiff’s horse. The facts out of which, the action arose are sufficiently stated in the opinion of the court.
    
      Odie Glose, for the appellants.
    
      William Wordsworth, for the respondent.
    
      
       Soe Corwin v. H. Y. & Erie R. R. Go., 3 Kernan, 42 ; also Duffy v. N. Y. & Ilarlem R It. Co., Com. Picas. General Term, July, 1859.
    
   INGRAHAM, Fikst Judge.

This action was to recover from the defendants for a horse, killed by falling from the Fourth avenue to the low ground on which the railway is laid in the cut through the centre of the avenue.

The only evidence, as to the cause of the loss of the horse, is, ^at he was tied in the stable at night, and in the morning was found lying on the railroad track, where he was killed.

The case appears to have been tried on the supposition that the horse had broken away from the stable and wandered to the place where he fell. The evidence shows the horse was blind of one eye, and could see a little out of the other.

Without examining the questions arising as to the admission of evidence, it appears to me that the plaintiff cannot recover in this action, for the reason that, by suffering his horse to wander. in the public streets, he was guilty of an act of negligence that contributed to the accident, and that the general rule, that a plaintiff in such a case must be free from negligence before he can recover for the negligence of the defendants, prevents his recovery.

The case of Munger v. The Tonawanda R. R. Co. (4 Coms. 349) contains a full examination of this question of negligence. In that case, it was held that where cattle strayed from the enclosure in which they were placed, and went on the track of a railway, where they were killed, the owner could not recover. The judge says, “ The defendants would not have injured the plaintiff, if his oxen had not strayed on the track of the railway; and as they were there without right, in respect to them the law did not enjoin it as a duty on the defendants to take care not to injure them. The want of such care was not, in judgment of law, a fault to be attributed to tbe defendants; but if it could be so considered, tbe plaintiff, baying been also in fault, by wbicb be contributed to produce tbe injury, is not entitled to recover.” Tbe principle established in tbis ease is conclusive in defendants’ favor, unless tbe fact of tbis accident having occurred in a public street alters the rule. Upon tbis question, tbe judge in that case says, in relation to such an accident occurring in a public street, “ If it appeared that tbe plaintiff’s negligence in any way con-dúced to bring about the injury complained of, be could not recover, whatever might have been tbe negligence of the defendants.” See, also, tbe opinion of C. J. Beardsley, in same case, in 5 Denio, 255, where tbis rule is more fully stated.

Tbe court below appears to have rested its decision upon thd negligence of tbe defendants, in not placing a fence at the cut ifl tbe avenue, to prevent animals falling down. Tbis might be sufficient to charge them, if tbe injury bad happened to an animal used on tbe avenue for tbe purpose of travel, but it does not relieve the difficulty of tbe plaintiff’s negligence in suffering his horse to wander at night in tbe streets. But for that negligence, tbe injury would not have been sustained. It is no answer to tbis to say that the horse broke loose from bis fastenings, and tbe plaintiff did not know it. It was tbe plaintiff’s duty to see that bis horse was so secured that be could not stray into tbe public streets. If tbe horse did so escape, it-was at tbe plaintiff’s risk, and he must bear the consequences of it.

I deem it unnecessary to pass upon tbe question whether the defendants were bound to erect a fence at this place, because, even if they were, it would not create a liability for an injury to tbe plaintiff’s horse, which could not have happened if tbe plaintiff had been free from negligence in taking care of him.

The same questions raised in this case have been before tbis court on a previous occasion, in Halleran v. The New York & Harlem R. R. Co. (2 E. D. Smith’s R. 257), and the same views were then expressed by Judge Woodruff. See, also, Marsh v. The New York & Erie R. R. Co., 14 Barb. 364.

Tbe judgment must be reversed.  