Fitch v. Buffalo, New York & Philadelphia Railroad

Headnote

Negligence — turning cows on to Mghma/y crossed by railroad track.

Appeal from a judgment of the Cattaraugus County Court reversing a judgment in favor of plaintiff, rendered in a Justice’s Court.

The action was brought to recover damages for negligently killing plaintiff’s cows at a highway crossing.

It appeared by the uncontradicted evidence of the plaintiff’s witness, his hired man, Hale, that after the cows were milked in the evening he turned them (forty-nine in number) into the high

way leading across defendant’s track to the pasture, and allowed them to go at large in the highway, unattended; that it was his business to drive them to the pasture; that half an hour afterwards he started after them, and, soon hearing a train pass, found three of them killed.

The court at General Term said: “ Voluntarily turning the cows into the highway, and permitting them to go on to the railroad without any person to take care of them, was clear negligence on the part of the servant, which prevents the plaintiff from recovering, or rather it brings him within the principle vohmti non fit imyuria. (Gorwi/n v. The JT. T. and Erie R. R. Go., 3 Kern., 42, per Marvin, J., p. 49.) ”