
    Adam Klock et al., App’lts, v. The New York Central & Hudson River R. R. Co., Resp’t.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed December 28, 1891.)
    
    1. Railroad—Fences.
    The plaintiff owned a farm on the bank of the Mohawk river through which the defendant’s road ran. He sold to the defendant the piece which laid between its road and the' river, but reserved a right of way over the lands to reach an island which he owned in the river. This right of way or road crossed the railroad at gradé. At the crossing the defendant maintained gates. R maintained a fence on the side of its tracks towards the plaintiff’s premises, but not upon the side towards the river. The plaintiff’s cows coming from the island over defendant’s lands were injured by a train. Held, that under chap. 140, Laws of 1850, as amended by chap. 283 of Laws of 1854, the defendant was required to maintain a fence along its road upon the side towards the river, although it owned the land upon that side.
    2. Same—Natural barrier—When it excuses fencing.
    The court could not say as matter of law that the river was such a natural barrier as relieved the defendant from its duty to fence its road along its tracks on the river side.
    This is an appeal from a judgment in favor of the defendant entered upon a nonsuit at the Montgomery circuit
    The action was brought by the plaintiff to recover the value of four cows belonging to plaintiff which were killed on defendant’s railroad track by a train of cars.
    6r. S. KlocJc, for app’lts; G. D. Prescott, for resp’t.
   Mayham, J.

Prior to September 3, 1873, the plaintiff Klock was the owner and occupant of a farm on the north side of the Mohawk river in the county of Montgomery, through which the defendant’s railroad, roadway and track passed. On that day Klock conveyed to the defendant a strip of land lying between the roadway and the river in an oblong form of about seven and one-fourth acres. Previous to such conveyance the defendant had maintained a farm crossing at grade across the railroad for the convenience of the Klock farm.

In the deed from Klock to the defendant it was provided that the defendant should maintain the crossing over its road to enable the defendant’s grantor to pass to and from an island of about eight acres owned by him in the river and lying opposite the land granted to the defendant.

The width of the land conveyed to' the defendant' from the farm crossing to the northerly bank of the river was a distance of about 150 to 175 feet, and the distance from the northerly bank of the river,, opposite the farm crossing, to the island was about 350-feet, so that the distance from the crossing to the island was. about 525 feet and the land conveyed by Klock to the defendant was bounded on the south by the north shore of the river, between which and the railroad the defendant maintained no fence, but on the north side of the railroad and between it and the Klock farm a fence was maintained. East, and west of the farm crossing and at the crossing there was a gate. The island was used for meadow in the summer and pasturage in the fall after the hay crop was harvested.

On the morning of the 23d of September the plaintiffs by their servants, drove thirty-five cows belonging to the plaintiffs across this farm crossing and through the north branch of the river to the island, and at about four o’clock in the afternoon of that day one of the plaintiffs’ employees opened the gate on the north side of the railroad and passed down to the river and standing upon its north bank on the defendant’s land called the cows and they came from the island, and as twelve of the cows came upon the north bank of the river on defendant’s land, he was notified of an approaching express train, coming from the west on defendant’s railroad, when he ran to the railroad followed by the cows, where he tried to signal- the train and also to prevent the cows from going upon the track, but failed in accomplishing either, and four -of the cows passed upon the track and were hit by the locomotive and killed.

On the trial at the conclusion of the plaintiffs’ evidence establishing these facts the defendant moved the court to nonsuit the plaintiffs. The plaintiffs insisted upon submitting to the jury the question of defendant’s negligence also the freedom of plaintiffs from contributory negligence, and also the question of defendant’s liability for not constructing a fence as required by the statute.

The court declined to submit the question to the jury and granted a nonsuit.

. The principal and perhaps the controlling question in this case is whether the defendant is liable for failing to fence its railroad track, as required under the provisions of the general railroad act, chapter 140 of Laws of 1850, as amended by § 8 of chapter 282 of the Laws of 1854. That section provides as follows: “ Every railroad corporation * * * shall * * * erect, and thereafter maintain fences on the sides of their roads, of the height and strength of a division fence as required by law, with openings, or gates or bars therein at the farm crossings of such railroad, for the use of the proprietors of the lands adjoining such railroad. * * * And so long as such fences '* * * shall’ not be made, and when not in good repair, such railroad corporation and its agents shall be liable for damage which shall be done by the agents or engines of any such corporations to any cattle, horses, sheep or hogs thereon, * * * but no railroad corporation shall be required to fence the sides of its road except when ■such fence is necessary to prevent horses, cattle, sheep and hogs from getting on the track of the railroad from the lands adjoining the same.”

Two questions may arise in construing this statute as applicable to this case.

First. Is the defendant, by this statute, required to fence its railroad track against the adjoining land of the company, so that the cattle trespassing upon it and straying thence upon the railroad track where they are injured shall be paid for by the company?

Second. Is the railroad company liable for not maintaining exterior line fences along its land not used for railroad purposes,,' but not divided from its railroad by fences along its track ?

The language employed by the legislature in imposing this obligation on railroad companies seems, clearly to indicate where-the fence required by the statute shall be located and maintained. “ They shall * * * erect and thereafter maintain fences on: the sides of their road,” etc. If that language is strictly followed, a company could not excuse itself by purchasing a large tract of land lying along their track and maintaining on the exterior line of' such tract, and at long distance therefrom a division fence between it and adjacent owners.

It is true that if such exterior fence furnished a complete barrier to any approach to the track by the animals named in the statute, the company .would be excused from constructing a fence-along the track under the concluding portion of the eighth section above quoted. In Kelver v. The N. Y., C. & St. Louis R. R. Co., 35 St. Rep., 673, it was held that the liability of the railroad company for animals killed by the cars where the railroad was not fenced upon the sides of the tracks did not arise out of any negligence of the company, but out of the failure to comply with the-provisions of the statute. This decision was affirmed by the court, of appeals in 126 N. Y., 365; 37 St. Rep., 485. In that case the-cattle of the plaintiff strayed from his farm across the unfenced railroad of another company, and then upon the railroad of the-defendant, which was also without fences along the sides of its-track, and the defendant was held to be liable for the loss suffered by reason of injury to the cattle. In this case the court hold,, that although the cattle after leaving plaintiff’s premises passed over other intervening lands before reaching the defendant’s railroad track, still as there was no intervening barrier to prevent them from reaching the defendant’s railroad, the defendant was not. excused from the statutory obligation to maintain a fence along-the side of its track. To the same effect is Shepard v. Buffalo, N. Y. & Erie R. R. Co., 35 N. Y., 641. From this examination-of the wording of the statute and the decisions construing the same, we are led to the conclusion that the first inquiry above-propounded must be answered in the affirmative, and that the defendant in this case was required, in order to protect itself from the consequences of injury to cattle, to construct fences along the-sides of its tracks even though the company owns the adjoining-lands ; unless there is some other physical barrier either artificial or natural upon which they can safely rely as a substitute for such fence. See, also, Rhodes v. R. R. Co., 5 Hun, 344, and Brady v. R. R. Co., 1 Hun, 378. This conclusion substantially answers the second question propounded above in the negative.

That a railroad company is not bound to maintain an exterior-line fence between its lands outside of, but adjoining its railroad lands and the lands of adjoining owners. Unless the manner in which the plaintiff used this crossing or the particular circumstances of this case take it out of the general rule and as matter of law exonerate the defendant from liability, the case should, have been given to the jury.

But it is insisted on the part of the defendant that the Mohawk river is a sufficient natural barrier between the plaintiff’s island and the railroad to relieve the defendant from its statutory duty of maintaining a fence along the side of the railroad track as to these plaintiffs, and that this case comes within the principle of the rule laid down in Schermerhorn v. Hudson R. R. R. Co., 38 N. Y., 103, and Dolan v. The Newburgh, Dutchess & Connecticut R. R. Co., 120 id., 571; 31 St. Rep., 852. In Schermerhorn v. H. R. R. R. Co., supra, it was held that the railroad company was not bound to fence its road along the banks of the river, or where it runs through channels of the river separated from the river by islands. But that decision seems to have been put upon the ground that by the charter of the railroad corporation, § 24 of chap. 216, Laws of 1846, which relieves the company from any obligation to maintain a fence “ when their railroad is constructed in the river,” the company is exonerated. In Dolan v. R. R. Co., supra, the plaintiff’s team was driven by his servant on a narrow strip of land between a mill and the railroad track, and the team was standing partly on this strip and partly on the land of the railroad company, and was left by the driver, when it escaped onto the railroad track, and was hit by a train of cars and killed.

The track was fenced along the railroad either way from the mill, and the distance from the platform of the mill to the lands of the railroad was four feet and ten inches, and' the majority of the court held that under the last clause of § 8, of chapter 282 of Laws of 1854, it was error for the trial court to refuse to hold that the railroad company was not required to fence its road at this point, upon the theory that the mill and the fences on either side along the road constituted a sufficient barrier to prevent animals from going upon the track, and brought the case within the provision of the above section of the statute, which is as follows: u But no railroad corporation shall be required to fence the sides of its road except when such fence is necessary to protect horses, sheep, cattle and hogs from going upon the track of the railroad from the lands adjoining the same.” But it is further urged by the defendant that the Mohawk river is a navigable river, and was a sufficient natural barrier, and that the court will take judicial notice of that fact.

In People v. The Canal Appraisers, 33 N. Y., 461, Davies, J., in delivering the opinion of the court, says: “ It is assumed and may be taken as conceded that the Mohawk river is one of the navigable rivers of the state and perhaps the court will take judicial notice that it is so.” In support of respondent’s contention it is urged that as division fences are not required by statute on the line of navigable rivers between riparian owners, by analogy they cannot be required along the side of railroad tracks, when a navigable river is so located as to constitute a barrier to prevent cattle from going upon railroads. That does not necessarily follow. No such exception is made in the statute. In Shepard v. Buffalo, N. Y. & Erie R. R. Co., 35 N. Y., 646, Peckham, J., says: “ The statute quoted was probably aimed at rivers or lakes through whose borders railroads may run and where fences would be unnecessary, or in other cases when high rocks or other obstructions would render it unnecessary to fence against the invasion of cattle.”

In the case at bar we think the court was not authorized as maU ter of law to determine that such natural obstructions existed as to render it unnecessary for the defendant to construct the statu • tory fence along the sides of its road. That was a fact to be determined by the jury, under proper instructions from the court.

This case differs from the case of Potter v. N. Y. C. & H. R. R. R. Co., 60 Hun, 314; 38 St. Rep., 798. In that case the railroad company owned land adjoining its tracks between which and the track there was no road fence, and the lessee tethered his horse-upon it, the horse broke loose, wandered upon the track and was injured by being frightened by one of the defendant’s trains. The question arose between it and the tenant of the defendant,, who leased the defendant’s land when there was no road fence dividing it from the track. No principle under such circumstances would as between the lessor and lessee make the former liable to the. latter. We do not see that this case conflicts with the cases above: cited, but depends upon an entirely different principle.

On the whole we think this case should have been submitted to* the jury and that the non-suit was error.

Judgment reversed, new trial ordered, costs to abide event.

Learned, P. J., concurs.  