
    Frederick Kelver, Resp’t, v. The New York, Chicago & St. Louis Railroad Company, App’lt.
    
      (Superior Court of Buffalo, General Term,
    
    
      Filed February 2, 1891.)
    
    Railroads—Fences—Injury to animals.
    The right of action vested in the owner of animals killed on a railroad where fences have not been erected and maintained, does not originate in any degree from negligence, hut from the violation of the statute, and does not involve the inquiry whether the adjoining lands are farming lands or lands upon which it would not he expected that cattle or animals would he allowed to run.
    ppeal from judgment in favor of plaintiff.
    This actión was brought to recover the value of two heifers which were killed on the defendant’s railroad in the city of Buffalo by being struck by an engine. There was judgment for the plaintiff. It was alleged and proved that the company failed to erect and maintain fences on the sides of its railroad. At the point where ■the heifers were killed, there were the tracks of five different railroads contiguous to one another, that of the defendant being a middle one.
    
      John G. Milburn, for app’lt; Close & Fleischman, for resp’t
   Beckwith, Ch. J.

The statute, according to the construction it has received from the court of appeals, does not allow an inquiry whether the lands adjoining the railroad are farming lands, or lands upon which it might be expected that cattle or other animals would not be allowed to run; and there is not often a case where it would be proper to leave it to a jury to say that a fence was or was not necessary, Shepard v. Buffalo, N. Y. & Erie R. R. Co., 35 N. Y., 641; Corwin v. N. Y. & Erie R. Co., 13 id., 42; Brace v. N. Y. C. R. Co., 27 id., 269; Tracy v. The Troy & Boston R. Co., 38 id., 433; Bradley v. Buffalo, N. Y. & Erie R. Co. 34 id., 427. To the same effect, Crawford v. N. Y. C. & H. R. R. R. Co., 18 Hun, 108.

The right of action vested in the owner of cattle killed on a railroad does not originate in any degree from negligence as the cause of the killing, nor from the act of killing. It is wholly the creation of the statute. The statute enjoins the duty of building fences, and, out of disobedience of its command, raises a right of action. It declares that if fences are not .erected the owner of cattle killed may recover the value, and if fences are maintained the owner of cattle killed shall recover nothing. The owner of the cattle killed is often more blamable for the straying, of .animals than the railroad for the killing; but the violation of the statute is the source of the right of recovery and the criterion of the existence of the right. The statute, by its general intendment, relates to the physical barrier that must exist upon the “ sides ” of the road “ to prevent horses, cattle, sheep and hogs from getting onto the track of the railroad from the lands adjoining the same.” That is pretty plainly the effect of the decision in Shepard v. Buffalo, N. Y. & Erie R. R. Co., and the recent case of Dolan v. N. D. & C. R. R. Co., 120 N. Y., 571; 31 N. Y. State Rep., 852, does not limit or qualify the decision in that respect. The difference of opinion in the latter case, in this particular, was upon the question whether the mill, itself a sufficient barrier, was on “the side” of the railroad; some of the judges thinking that it was on the side “ near enough for all practical purposes,” and near enough to meet the proviso of the statute, and others of the judges thinking that it'was not Cattle guards at highway crossings and fences on the sides of the road, except where other physical “ protection ” of and against animals exists, is the policy of the statute. It is not necessary to say that that protection could not possibly exist in other than physical means.

The sum of the matter seems to be that, by the statute, the legislature has said to the railroads of the state that they must maintain fences or suffer the liability, and the courts have been given no power of dispensation. The judgment should be affirmed.

Hatch, J., concurs; Titus, J., did not sit  