French v. Western New York & Pennsylvania Railroad — 54 N.Y. St. Rep. 762

Majority

p. 762

Thomas O. French, Resp’t, v. The Western New York & Pennsylvania Railroad Co., App’lt.

(Supreme Court, General Term, Fifth Department,

Filed October 20, 1893.)

Headnote

Railroad—Negligence—Fences.

Plaintiff's horse, which was pastured in the farm of one Davis, went therefrom upon defendant’s lands at a point where there was no fence, and fell through a bridge over the ditch from which the planks had been taken by defendant's employes for the purpose of making repairs. Held, that defendant was liable for the injury, as it resulted from its negligence in not performing its statutory duty of fencing its track, and the obligation todo so was'due to the owner of the field and to the persons deriving from him tbe right to use the same for the purpose of pasture.

(Graham v. D. & H. 0. Oo., 46 Hun, 886 ; 13 St. Rep., 390 , followed.)

Appeal by the defendant from a judgment of the county court of Cattaraugus county, affirming the judgment of a justice’s ■court.

Carr, Rumsey & Hastings, for app'lt; M. B. Jewell, for resp’t.

The action was to recover for injuries to the plaintiff’s horse, caused by his falling through a bridge over the ditch by the side of the defendant's road adjacent to the farm of one Davis. The horse was pastured on the Davis farm and went onto the railroad land at a point where the fence was wanting. The

p. 763

railroad hands had taken the planks off from the bridge for the purpose of repairs, and the horse coming upon it fell between the stringers. The case is, in principle, precisely like that of Graham v. President D. & H. C. Co., 46 Hun, 386 ; 12 St. Rep., 390 , in which our brothers in the third department sustained a judgment in favor of a plaintiff who lost his horse by a fall over the edge of a deep cut in which the defendant’s track was laid through the plaintiff’s field and which was unprotected by a fence. In that case it was held, in an opinion by Laudon, J., that the defendant was guilty of negligence in not performing its statutory duty to fence its track, citing Corwin v. N. Y. & E. R. R. Co., 13 N. Y., 53 , and was liable to any party to whom that obligation was directly and individually due for any loss or injury resulting from its neglect, citing Thomas v. Utica & B. R. R. R., 97 N. Y., 245 ; Leggett v. Rome, W. &. O. R. R. Co., 41 Hun, 80 ; 2 St. Rep., 312 ; and Jetter v. |N. Y & H. R. R. Co., 2 Keyes, 154, 162. In this case the obligation was due to the owner of the Davis farm and to persons deriving from him the right to use his fields for, the purpose of pasture. The opinion to which we refer also makes clear the distinction between that case and, equally, between this case and the case of Knight v. The N. Y., L. E. & W. R. R. Co., 99 N. Y., 25 , upon which the defendant here mainly relies. The distinction is that in the case of Knight there was no neglect on the part of the defendant of any duty which it owed to the plaintiff. The colt, which was killed by falling through a bridge on the track, was astray on the highway aud gained access to the defendant’s lands through the lands of another proprietor.

The doctrine of that case was, therefore, not in any manner inconsistent with the judgment in this case. In neither case, it is true, was the damage inflicted in the manner described by the statute, viz., by the servants or engines of the defendant, but in this case it resulted from the neglect of a statutory obligation due to the plaintiff, while in the other case no such obligation existed.

We are disposed to concur in the reasoning and conclusion in the case of Graham, supra, and, consequently, to affirm the judgment here appealed from.

Judgment of the county court of Cattaraugus county appealed from affirmed, with costs.

Lewis and Haight, JJ., concur.