
    Henry Hungerford, Resp’t, v. The Syracuse, Binghamton and New York Railroad Co., App’lt.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed November, 1887.)
    
    Railboads—Duty to maintain bobs at fabm crossings, etc.—Chap.' 140, Laws 1850 as amended by chap. 282, Laws 1854—Liability for DAMAGES TO CATTLE.
    Plaintiff’s horses strayed upon the defendant’s track and were killed hy a passing train. Previously a portion of the railroad fence had been burned down by the defendant, leaving an opening on to the track. There was also a farm crossing. It was a question of fact whether the horses came upon the track through the burned opening or through the crossing, the bars being down. There' was no evidence that the defendant had notice of the bars being down. The defendant requested the court to in ■ struct the jury that if the cattle passed through the bars then the defendant is not liable. This the coui t declined to do. Held, error. That the defendant was bound to build and keep in repair fences along the track, with gates or bars at farm crossings, and such gates or bars were part of the fence. Chapter 140, Laws 1850, amended by chapter 282, Laws 1854. That the basis of this action is negligence, and before plaintiff could recover on the ground of negligence he was bound to prove either that the defendant had actual notice that the bars were down, or that they had been down for such a length of time that the defendant might be presumed to have had notice through its agents and servants.
    
      Louis Marshall, for app’lt; William Kennedy, for resp’t.
   Martin, J.

On the 14th day of December, 1885, four young horses owned by the plaintiff escaped from his bam yard and entered upon the defendant’s railroad track, where they were killed by a passing train. The fence along the track had been burned down at one or more places, so that horses or cattle could pass through on to the track. There were also bars in the railroad fence at the plaintiff’s farm crossing.

Plaintiff claimed and introduced evidence which tended to prove that the horses went on to the track through this burned opening in the defendant’s fence. The defendant’s evidence tended to show that they came on through the bar-way at the farm crossing, and that was the defendant’s claim. The principal question litigated by the parties was, where the horses entered upon the defendant’s track; whether through the opening in the fence, or through the bar-way.

On the trial, at the conclusion of the judge’s charge which submittted to the jury the question of the defendant’s negligence, based even upon the theory that the horses passed onto the track through the bar-way, the defendant requested the court to “instruct the jury that if the cattle passed through the bars then the defendant is not liable.” This the court declined to do, but left the question to the jury. To this ruling the defendant duly excepted; this exception presents the only question requiring consideration.

The defendant was bound to build and keep in repair fences along the sides of .the track, with gates or bars for the use of adjoining owners, at farm crossings, and such gates or bars were a part of the fence which it was bound to maintain and keep in repair. Chapter 140, Laws 1850, as amended by chapter 282, Laws 1854; Spinner v. N. Y. C and H. R. R. R. Co., 67 N. Y., 153. Indeed, this is admitted by both parties.

The basis of this action is negligence. It was only on proof that the defendant had negligently omitted to perform some act or duty imposed upon it that the plaintiff could recover. Before tie could recover on the ground of negligence, based on the fact that the horses passed on to the track through the bar-way, he was bound to prove either that the defendant had actual notice that the bars were down or that they had been down for such a length of time that the defendant might be presumed to have had notice through its agents and servants. Wheeler v. The Erie R. R. Co., 2 Thomp., & Cook, 634; Hodge v. The N. Y. C. and H. R. R. R. Co., 27 Hun, 394; Olmsted v. Watertown and Rome Railroad Co., cited in Sherman v. The Western Transportation Co., 62 Barb., 158.

In this case there was no proof that the bars had been down for a single moment before the horses reached the bar-way, if they passed on to the railroad at that place. There was no proof either of actual or constructive notice to the defendant of their being down. Under this proof the plaintiff was not entitled to recover, if the horses passed on to the track through the bar-way. The defendant, was. entitled to the instruction asked for, and it was error for the court to decline to charge as requested.

For this error the judgment and order should be reversed and a new trial granted with costs to abide the event. o Hardin, P. J., and Follett, J., concur.  