Majority
p. 197(69 Hun, 137.) HAM v. NEWBURG, D. & C. R. CO. (Supreme Court, General Term, Second Department. May 8, 1893.)
Headnote
Railroad Companies—Insufficient Cattle Guards.An open bridge, made with stringers and cross timbers, seven inches wide and six inches apart, is not a sufficient cattle guard, within Laws 1891, c. 367, providing that railroad companies shall maintain cattle guards at all road crossings sufficient to prevent horses from going on its tracks.
Appeal from circuit court, Dutchess county.
Action by Eugene Ham against the Newburg, Dutchess & Connecticut Railroad Company to recover damages for injuries to plaintiff’s horse, caused by his falling off a bridge over a stream.used as a cattle guard at a highway crossing. From a judgment for plaintiff, entered on the findings of the court, defendant appeals.
Affirmed.
p. 198Argued before DYKMAN and PBATT, JJ.
Laws 1891, c. 367, provide that railroad companies shall maintain cattle guards at all road crossings, suitable and sufficient to prevent cattle, horses, sheep, and hogs from going on its railroad. It appeared that the bridge was-constructed of stringers, on which were laid sawed cross-ties about seven inches top face, and about six inches apart.
W. S. Eno, (Milton A. Fowler, of counsel,) for appellant.
Hackett & Williams, for respondent.
The structure which defendants call a “cattle guard” was in no sense such a one as their duty required. Cattle were more likely to be enticed upon the track than to be turned back. Had a proper guard been constructed, the accident would not have taken place. The duty which the company violated was one owing to the public. Any person injured can recover his damages.
Judgment affirmed, with costs.