
    The Diamond Brick Company, Resp’t, v. The New York Central & Hudson River Railroad Co., App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 8, 1890.)
    
    'Railroads—Fbhces.
    Where a railroad company erects a sufficient fence with gates therein for the use of adjoining owners, and such an owner for her own convenience leaves the gate open, neither she nor her employes or lessees can complain of the railroad company for not shutting it.
    Appeal from judgment in favor of plaintiff entered upon a ■verdict, and from order denying motion for a new trial.
    Action to recover for the killing of plaintiff’s horse on the tracks of the West Shore road near West Haverstraw.
    
      Aslibel Green and Herbert H. Kinney, for app’lt; George W. Wei-•ant, for resp’t.
   Barnard, P. J.

The West Shore railroad runs through the farm of Emma Seed. The railroad fenced its track and left a .gate for the use of the farm owners. The Diamond Brick Company, by the permission of the owner had pastured a horse upon the Seed farm. The field in which the horse was pastured ran back to the railroad. The gate in question was a part of the fencing when it was shut In September, 1886, the horse got upon the railroad track and was killed by an engine of defendant, which operates the West Shore railroad. The fence was a wire fence four wires high, fastened to upright posts, and was three or four feet high.

• There was some proof that the fences were made without sufficient strength of wire and staple, but the proof was so entirely unaccompanied by any proof that the horse got on through these defects, that the judge told the jury that the evidence was insufficient to justify the conclusion that the fence was insufficient.

Under the evidence the gate was continually kept open, at least there is evidence which justifies the jury in so finding. The only question is, therefore, whether or not as against the land owner the railroad company is bound to close the gate when its officers have notice that it is open.

There seems to be no basis for a charge of negligence against the defendant. The gate was built for the owner and it was built in accordance with law for the use of the owner.

The railroad could not control the use of the gate. After use the owner either did not shut the gate or permitted it to remain open for long intervals of time. If this is neglect on the part of the company arising from a failure to shut the gate, why is it not neglect on the part of the owner to leave it open while using it for the purpose of the farm from day to day, all summer or a great portion of the summer.

She took her risk as to the cattle getting on the railroad by the open gate and she hired the pasturage to the plaintiff upon the same condition. It would have been unwarrantable in the defendant to shut the gate on the day of the accident if the owner was using the crossing, and a failure to inquire whether or not the gate was left open by the farm employes using the same is not a negligent act.

The proof therefore fails to show any neglect in respect to the gate in question. The owner for her own convenience left the gate open and neither she or her employes or lessees can complain of the railroad company for not shutting it.

The judgment should be reversed and a new trial granted, costs to abide event.

Dykman and Pratt, JJ., concur.  