Hyperlawhypertext legal database Kagelmacher v. Erie R. Co. 157 N.Y.S. 433

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Kagelmacher v. Erie R. Co.

157 N.Y.S. 433 Court N.Y. App. Div. English

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p. 433
(169 App. Div. 916)
KAGELMACHER v. ERIE R. CO. et al.
(Supreme Court, Appellate Division, Fourth Department.
May, 1915.)

Headnote

Railroads @=>411—Animals on Tracks—Defense—Agreement to Maintain Fences.
That one railroad company had agreed to maintain the fences along the right of way of another railroad company did not relieve the latter from liability for a cow which was killed on its tracks by its car.
[Ed. Note.—For other cases, see Railroads, Cent. Dig. §§ 1409-1450; Dec. Dig. @=>411.]
<@3»For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes
p. 434
Appeal from Erie County Court.
Action by John Kagelmacher against the Erie Railroad Company and the International Railway Company. From judgment for plaintiff, defendants appeal. Affirmed as to the International Railway Company, and reversed and dismissed as to the Erie Railroad Company.
Leave to appeal to Court of Appeals denied, 154 N. Y. Supp. 1128 .
Argued before KRUSE, P. J., and ROBSON, FOOTE, LAMBERT, and MERRELL, JJ.
Moot, Sprague, Brownell & Marcy, of Buffalo, for appellant Erie R. Co. Cohn, Chorman & Franchot, of Niagara Falls, for appellant International Ry. Co. Fred C. Maloney, of Buffalo, for respondent.

While the Erie Railroad Company was obligated to maintain-a fence, it was not liable for the killing of the plaintiff’s cow, because it wás not killed by the agents, engines, or cars of the Erie Company. It was the duty of the International Railway Company to fence its tracks, and it was not relieved from that obligation as to the plaintiff by any arrangement it may have had with the Erie Company respecting tire maintenance of the fences; and the cow having been killed upon the tracks, and by the car, of the International Rail- ' way Company, it is liable therefor.

Judgment affirmed, with costs as to the defendant International Railway Company. Judgment reversed and complaint dismissed as to the defendant Erie Railroad Company, with costs, including costs of this appeal.