[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 44 In May, 1851, the plaintiff's oxen were upon the defendant's road at a place called the "Summit," in the town of Sandford, Broome county, and one of them was hit and injured by a passing train. In October of the same year, the same oxen were again upon the track of the road, and the locomotive and train of cars run over one of them and killed it, and struck and greatly injured the other. The road where the injury occurred, and for some distance each way, passed through land belonging to one Gregory; that is, Gregory owned the land on each side of the railroad, and had conveyed to the defendant the land for the road, and covenanted in the deed to make, and forever maintain, all necessary fences on both sides of the road. The railroad crossed a highway some twenty-five to thirty rods from the place where the injury in May happened, and some seventy or eighty rods from the place where the injury in October occurred. The highway was on or through the land *Page 45 of Gregory; the railroad was not fenced, nor was there any cattle guard at the crossing of the highway. The plaintiff's farm lid not adjoin the railroad. It does not appear from the evidence where the oxen entered upon the railroad; they could enter from the lands along the sides of the road or from the highway. The referee says "it does not satisfactorily appear how, in either case, the oxen came on to the track; but from evidence, I am of opinion, and find accordingly, that there being no fence or cattle guards, they passed on to the track by the public crossing place or highway. How they happened or were there, does not appear." There is not a particle of evidence tending to show that the oxen entered upon the railroad where it crosses the highway, and the referee says, it does not satisfactorily appear how the oxen came on to the track; but in the view I take of the case, this question will not probably be material. If the oxen entered upon the railroad from the adjoining lands of Gregory along the sides of the road, was the defendant liable, there being, in fact, no fence at the place of such entry? I am not aware that this question has been decided in this state since the general railroad act of 1848 became a law.
The question is of much practical importance and calls for the construction of § 44 of the general railroad act of 1850 (Lawsof 1850, 233), which contains the same provisions as § 42 of the act of 1848. The language is: "Every corporation formed under this act shall erect and maintain fences on the sides of their road, of the height and strength of a division fence required by law, with openings or gates or bars therein, and farm crossings of the road for the use of the proprietors of lands adjoining such railroad; and also construct and maintain cattle guards at all road crossings, suitable and sufficient to prevent cattle and animals from getting on to the railroad. Until such fences and cattle guards shall be duly made, the corporation and its agents shall be liable for all damages which shall be *Page 46 done by their agents or engines, to cattle, horses or other animals thereon; and after such fences and guards shall be duly made and maintained, the corporation shall not be liable for any such damages, unless negligently or willfully done."
By the common law, the owner was bound to take care that his cattle did not leave his own lands and trespass upon those of his neighbor (Pomfret v. Ricroft, 1 Wm's Saund., 321); if they did, he was himself liable for damages in an action of trespass. It has long been settled in this state, that there can be no recovery in an action on the case for negligence, where the negligence or misconduct of the plaintiff contributed to the injury; hence it was repeatedly decided, prior to the general railroad act of 1848, that one whose cattle were trespassing upon the railroad at the time they received the injury, could not recover damages of the railroad company. It will only be necessary to refer to The Tonawanda Railroad Company v.Munger (5 Den., 255), where the whole question is ably considered. (S.C. on Appeal, 4 Comst., 349.) It is clear, from the case just cited and from the well established principles of the common law, that, aside from the statute, the plaintiff in this case could not recover. We are then to consider whether the statute has made any change in the law, and if so, what, and whether it embraces the plaintiff's case and entitles him to recover. It should be here remarked that we have long had statutes in this state touching division fences; and there have been many decisions respecting the rights and remedies of adjoining proprietors where cattle have trespassed through defective fences. It has been decided that the land proprietor is not bound to fence against any cattle which are not lawfully in the adjoining close of his neighbor. In other words, if the cattle trespassing upon him, come as trespassers from the adjoining close of his neighbor, their owner could not defend upon the ground that the fence of the plaintiff was defective, or that there was no fence. *Page 47
Having briefly adverted to the state of the law, prior to the statute, we are prepared to consider it. As we have seen at common law, the owner of cattle must keep them upon his own premises; and we have also seen, that if he did not, they were trespassers and he was guilty of negligence; and when his negligence contributed to their injury, he could not recover for an injury on the ground of negligence in the defendant. Were these principles proper and sufficient when applied to the new circumstances and condition of things arising out of the general introduction and use of railroads in the country? They may have been entirely satisfactory and sufficiently protective under the old order of things. But a new state of things has arisen: a power, but recently discovered and applied to the uses of man, has been appropriated as a motive power to the moving of large and heavy bodies at a velocity before unknown, acquiring a momentum and speed endangering the lives of all animals coming in contact with the moving mass, whether locomotive or cars, and at the same time putting in jeopardy the lives and limbs of all those who are connected with the train. The danger to passengers, as science will demonstrate and as experience has shown, is great and imminent whenever the locomotive or cars in their rapid movement come in collision with any substance disturbing the regularity of the motion or speed acquired. An ox, cow or horse upon the track presents a substance sufficient, often to throw the engine and cars from the track, and thus cause a general wreck in which many lives are lost and limbs broken. To guard against these dangers it is necessary that all animals should be kept from the track; this can only be done by securing the track by fences and cattle guards at road crossings, or in some other way. Was it safe to leave this important matter to the thousand proprietors of lands along the sides of the road? Experience had shown that it was not; it had also shown that there was and would be much litigation growing out of the killing and injuring *Page 48 of cattle along the road, producing irritation and exciting angry, and at times vindictive passions. Under these circumstances the statute in question was enacted and, in my opinion, it changed very essentially the law. The general duty of erecting and maintaining fences on the sides of their roads is now imposed upon the railroad corporations; this duty is to be performed for the public benefit and security and also for the benefit of the owners of cattle generally. In short, the corporations are to erect and maintain the fences; and until they do so, they and their agents are liable for all damages which shall be done by their agents or engines to cattle, horses or other animals thereon. The language of the statute is general; it is not limited to damages done to the cattle, c., of theadjoining proprietor, or to cattle, c., which were lawfully upon the adjoining premises, but it extends, where there is no fence erected, to all cattle, horses or other animals. The statute says nothing about negligence in either of the parties. It is, however, immediately added, that after such fences, c., shall be duly made and maintained, the corporation shall not be liable for such damages, unless negligently or willfully done.
It has been suggested that a literal reading of the statute would render the corporation liable, in the absence of fences, for an injury to cattle, when the owner had driven them and left them upon the road. The statute, like others, must receive a reasonable construction. We must ascertain the object and intent of the legislature; and in our endeavors to ascertain such intent, and the object and scope of the provision, we are permitted to consider the state of things at the time the law was enacted. We know that cattle often strayed from the close of the owner; that they often trespassed upon the lands of a neighbor, where such neighbor's land adjoins the railroad. The owner of the cattle will be liable in damages to his neighbor for the trespass; but it by no means follows, since the statute *Page 49 that if his cattle go from his neighbor's land on to the track of the railroad, and are killed, the corporation will not be liable, there being no fence. And to this extent I think the statute excludes the negligence of the plaintiff, as a defence. But should it appear that the plaintiff drove his cattle on to the road, or into the neighborhood of the road, and left them there, or did any other positive act increasing the danger to his cattle, a very different question would be presented. The maxim,volenti non fit injuria, would then apply; or if it should appear that cattle had come upon the road where fences had been "duly made and maintained," by leaping or prostrating them, or through a gate, and had strayed along the road to a place where it was not fenced, and been there killed, a very different question would be presented. In the case under consideration, there is no evidence or finding of the referee, to show how or where the plaintiff kept his oxen; whether they were or were not kept upon his own premises; whether or not they strayed into the highway, and thence on to the railroad. In my opinion, this case comes within the statute, its letter, design and object; and whatever negligence appears in the case, on the part of the plaintiff, is as a defence to this action, excluded by the statute.
It has been noticed that Gregory, who conveyed the land for the road through his farm, was bound, by his covenant with the defendant, to erect and maintain the fences. The plaintiff is a stranger to this covenant, and cannot be bound by it. Had Gregory's cattle entered upon the road from his land, by reason of there being no fence, and been injured, his covenant would have been a good answer to the action. It must be borne in mind that the statute imposes the duty generally upon the railroad company, to erect and maintain the fence; and the public and individuals have a right to hold the company responsible for the performance of this duty. If Gregory had erected and maintained the fence, this would have satisfied the statute, as the railroad company *Page 50 would have caused the erection of the fence; but until the fence was erected, the company remained liable for the omission.
Several cases have arisen since the statute, and been decided by the supreme court. In Suydam v. Moore (8 Barb., 358), the railroad company had not erected fences: a cow came on to the track and was killed. The action was against the engineer and fireman, and it was held that the company or its agents were liable to the owner of the cow, without any proof of negligence. In Waldron v. Rensselaer and Saratoga R.R. Co. (8 Barb., 390), the company had not erected any fence. A horse was killed by the train in the night, and found a few feet from the place where the railroad crossed the highway. There was no cattle guard; it was held, the corporation not having erected fences or constructed cattle guards, that it was chargeable with negligence, and responsible for the injury. These cases were decided in the 4th judicial district. In Brooks v. The N Yand E.R.R. Co. (13 Barb., 594), the cows entered from the highway on to the railroad, through a gate erected across a passage or way leading from the highway across the railroad to a brick yard. The gate had been left open, and the cattle entered and strayed along the railroad where it was not fenced. There was no cattle guard where the way to the brick yard crossed the railroad. It was held that the company was not bound to construct a cattle guard at this crossing; also, that the company were not liable. Justice Shankland expressed the opinion, that cattle of a stranger, on the premises of an adjoining proprietor without right, are not within the protection of the statute. This opinion was not necessary to the decision of the case. He very properly says, that the only real point necessary to be decided in the case is, that when the cattle of a stranger are on the lands of a proprietor adjoining a railroad, and from those lands pass on to the railroad through a gate left open by the proprietor of the said lands, and are *Page 51 killed, their owner cannot recover, although the defendant has not complied with § 44 of the general railroad act in respect to fences at other points on the said road. The case was decided upon this position. In Marsh v. The N.Y. and E.R.R. Co. (14Barb., 364), the cow killed was usually pastured in the highway and commons. She was killed at a place where the railroad was not fenced. It was held that railroad corporations are responsible for damages caused by them when they omit to make fences, whether from carelessness, mismanagement or willfulness, or from inevitable accident; but are not answerable for the carelessness or willful misconduct of those who, from such causes, sustain injuries from them; that if cattle stray upon the track, through the negligence and carelessness of their owners, the corporation is not liable; that it is gross negligence for a person to suffer his cattle to go at large on the highways in the immediate vicinity of a railroad, whether the railroad be fenced or not. As I understand, one of the learned judges lays much stress upon the language, — damages which shall be done by their agents or engines, c., — arguing that when the owner of the cattle has been guilty of carelessness, or willful misconduct, it cannot be said that the company has caused the damage by their agents or engines. I cannot concur in the construction given to the statute in that case, for the reasons already stated. It is, in my opinion, quite too narrow. In Fawcett v. The York and NorthMidland Railway Co. (2 Eng. Law and Equity R., 289), the plaintiff's horses, being in the highway, passed through an open gate on to the railway, and were killed. By the railway act, it was made the duty of the railway company to erect gates across the highways at the crossings of the railway, and to keep them constantly closed, except, c. It was insisted by the defendant, that the horses were not lawfully in the highway, and that therefore the company was not bound to keep the gate closed against them; but it was held that the company was liable. This case is in point. The duty of *Page 52 erecting gates and keeping them closed was imposed upon the railway company, and as to them, the court would not inquire how the horses came into the highway; but as to the company, held, that the horses were lawfully on the highway. In Ricketts v.The East and West India Docks and Birmingham Junction RailwayCompany (12 Eng. L. and Eq. R., 520), the sheep were trespassing upon a close adjoining the railway, and through a defect of fences strayed upon the railway and were killed. It was held that the plaintiff could not recover at common law or under the railway act; that the company was only bound to fence as against the owners or occupiers of the adjoining close; that the statute, as to other persons, had not changed the common law. The statute imposed the duty upon railways, to make and maintain sufficient fences for separating the land taken for the use of the railway from the adjoining lands not taken, and protecting such lands from trespass, and the cattle of the owners and occupiers thereof from straying thereout, c. It is quite clear that this statute did not impose the general duty of making and maintaining fences, as against all cattle in the adjoining close, whether rightfully or wrongfully there. They were to make fences for protecting the lands not taken from trespasses, and the cattle of the owners or occupiers from straying, c. The common law, as to cattle trespassing upon the adjoining close (as the sheep were), was not changed. Our statute is not thus restricted. By it the duty to erect and maintain fences upon the sides of the road is general, as the statute in Fawcett's case, supra, was to erect and keep closed the gate; and our railroad companies cannot raise the question, when they have omitted to make fences, whether the cattle were lawfully upon the adjoining close. Having failed to perform the duty enjoined by the legislature, they are, by the plain language of the statute, liable "for all damages which shall be done by their agents or engines, to cattle or other animals thereon." *Page 53
The judgment of the supreme court should be reversed, and the judgment directed by the referee should be affirmed.