
    Augustus Stisser, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
    
      Negligence—a, colt injured by the buckthorn fence of a railroad.
    
    In an action to recover damages for injuries alleged to have been sustained by the "plaintiff’s colt from a buckthorn fence constructed by the defendant, a railroad corporation, where it appears that the fence had been in; use for fourteen years, and that no accident or injury had resulted therefrom or complaint been made of its -character and that it was not out of repair (the question whether ■ the fence was of a kind prohibited by statute not being considered), the plaintiff is. not entitled to recover.
    Appeal by the defendant, The New York Central and Hudson River Railroad Company, from a" judgment of the County Court Of Madison county, entered in the office of the clerk of the county of Madison on" the 10th day of January, 1897, upon the verdict of a jury rendered upon appeal from a judgment of a justice of the peace in favor of the defendant, and also from an- order entered ill said clerk’s office on the 28th day of December, 1896, denying the defendant’s motion for a new trial made upon the minutes.
    The action was brought to recover for injury to the plaintiff’s colt, alleged to have been caused by a fence constructed by the defendant;
    
      Prescott & Titus, for the appellant.
    
      Semi & Durham, for the respondent.
   Herrick, J. :

In this case the court charged the jury, that the question of whether this was or was not a barbed wire fence, does not affect the result of this action.”

And, also, that the jury had “ nothing to do with the question whether this was or was not a barbed wire fence, and no liability of the defendant depends on that fact as a fact.”

The question, therefore, as to whether the fence was or was not a barbed wire fence, and also as to whether the defendant had violated the statute (§ 32 of chap. 565 of the Laws of 1890, as amended by chap. 367, Laws of 1891), was eliminated from the case, and the jury were free to consider the question, as we are, without regard to the statute prohibiting the use of barbed wire, as a fence by railroads.

And we have' no right to assume that the jury found the fence to be a barbed wire fence, or that they at all considered that question. The only questions are : Was the fence a suitable and proper fence; was it properly maintained, and did the plaintiff discharge the duty that was incumbent upon him %

The kind of fence by which the plaintiff’s colt sustained injury is commonly known as" buckthorn ; the plaintiff himself had used this kind of fence and what is known as barbed wire fence for a I number of .years, and the neighbors had done the same thing.

The lot where the accident occurred' is partly fenced by buck-thorn and partly by barbed wire fence; the portion built by the delendant is buckthorn.

The fence in question has been in use for fourteen years, and, so far as the case shows, no accident or injury had happened by means of its maintenance, and no complaint appears ever to have been made by the plaintiff as to its character.

The plaintiff had used tile lot, which this fence divided from the railroad, as a pasture lot for several years before the occurrence of the injury in question; he knew the kind of a fence it was; he knew the condition it was in. "On, the day that he turned the colt that was injured into the pasture,.and before turning him in, lie made an examination of the fence and- found that one of the strands of .wire was loose and fastened it up, presumably, as he. supposed, in a proper and sufficient manner.

If the plaintiff could discover nothing that rendered the fence dangerous, or if he discovered anything out "of repair and immediately remedied it, we cannot say that the defendant is chargeable with negligence that produced the injury.

The question as to whether this wife was of the kind prohibited by the statute being taken out of the case, and in view of the long use of" this kind of fence in that locality by the plaintiff and others, as Well as the defendant, I fail-to see, upon all the evidence, that there was sufficient to charge the defendant with negligence, and the judgment.-is, therefore, reversed and a new trial- granted, with costs in all the courts "to abide the event.

All concurred, except Landon, J\, dissenting, - and Putnam, J., not sitting. " .

Judgment reversed and a new trial granted, costs to abide the event.  