
    John H. Dixon, Resp’t, v. New York Central and Hudson River Railroad Co., App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed February 11, 1889.)
    1. Railboads—Duty to maintain fences—Station grounds—Exception.
    The general rule is that the statute requiring railroad companies to-erect and maintain fences on the sides of the railroads, has no reference to station grounds which the convenience of the public and the railway company requires should be open for the transaction of their mutual business.
    3. Same—When tback unfenced—Liability.
    Where a horse attached to a sleigh strayed upon a railroad track at a point on the line of the road which was not used for depot purposes and which was unfenced, and was killed: Held, that the railroad company is liable in damages for such killing.
    3. Same—When advantage can be taken of rule not requering
    FENCE.
    Where there was an unfenced space along the railroad track, and which was not within the station grounds, and which was sometimes used by passengers going and coming from a hotel near by, and the station: Held, that it is incumbent upon the railroad company to show that such space was left open for the convenience of the public before it can invoke the rule not requiring a fence.
    Appeal from a judgment entered on the verdict of a jury and from an order denying a motion for a new trial.
    This action was brought to recover damages for the loss of a horse killed by an engine upon the track of the West Shore railroad operated by the defendant as lessee, near West Nyack station, by reason of defendants’ negligence. The Nyack turnpike crosses the railroad some little distance southerly of the station. The station is on the east side of the railroad; on the west side is Benson’s hotel. There is on the west side an open space between the turnpike, the railroad and the hotel. The plaintiff’s horse, attached to a sleigh, and which had escaped from a shed where it was tied, strayed upon the railroad track at some point in the unfenced space and was killed. The plaintiff claims that the defendants, as lessees of the West Shore railroad, were negligent in failing to erect a fence at the point mentioned.
    
      Ashbel Green and Herbert E. Kinney, for app’lt; Arthur S. Tompkins, for resp’t.
   Pratt, J.

—The general rule is, that the statute requiring railroad companies to erect and maintain fences on the sides of their roads, etc., has no reference to station grounds which the convenience of the public and the railway company requires should be open for the transaction of their mutual business. But as we understand the evidence, and the plan used as an exhibit, the case is not brought within, this rule.

The case shows, and the jury has found, that the horse was killed fifty or more feet north of the crossing, and probably near the bridge, and that he went upon the track at a place not fenced, and not properly within the depot grounds. There was really no question of fact for the jury, •except as to the killing of the horse as alleged, and the amount of damages.

It appearing that a space of one hundred or more feet north of the highway between the land of Benson and the railroad track were not fenced at all, and that the same were not a part of the depot grounds, there was no necessity to •submit any question to the jury upon this part of the case and, hence, the' court was not in error in refusing the request to charge that the defendant company was not under obligation to fence its station grounds.

The defendant produced one witness (Wheatley) who testified that passengers going from the hotel to the station .and back, crossed directly in front of the station and the hotel, which would be over a portion of the unfenced space before mentioned, but because it was sometimes used in that way, it did not follow that the space was left open for "the convenience of the public, or that the public would be incommoded by its being fenced.

It was incumbent upon the defendant to do this before it «could invoke the rule not requiring a fence.

It clearly enough appears that the horse strayed upon the track north of any point where either the defendant or the public could claim to be inconvenienced by a fence.

There is no claim that any person ever drove over this space, and no proof that the ground had ever been prepared by planking or leveling between the rails for foot passengers.

I have assumed the law to be as laid down by Judge 'Cooley, in the cases referred to in defendant’s brief, hut the law in this state seems to imply a much more stringent-rule; under the latter, it is plain that the verdict was right, and that no error was committed upon the trial. Bradley v. Buffalo, N. Y. and Erie R. R. Co., 34 N. Y., 427.

Judgment affirmed, with costs.

Dykman J., concurs; Barnard, P. J., not sitting.  