I am of opinion that the statute which we are called upon to construe is not to be regarded as merely a regulation, respecting division fences, between the land of the railroad corporations and those of adjoining property; but that it is rather to be considered as providing a safeguard for the protection of the lives of persons traveling by railroad, and of the property in animals, which citizens in the vicinity of those roads may own. If the land comprised within a railroad tract might be entered upon with no more hazard than an adjoining farm, it might be reasonable to construe the act as simply a modification of the law regarding division fences. But when we consider that these tracks are incessantly traversed by engines, driven at a great speed, and with a force practically irresistible, and that an intrusion thereon is very likely to result in the destruction of the intruder, and in loss of life to those who are traveling upon the road, we cannot but see that the legislature had something further in view than the pecuniary burthen of maintaining fences between adjoining proprietors of land. The injunction upon the railroad corporations, to construct and maintain the fences and cattle guards, is positive and unqualified, and it is obvious that the whole community has a deep interest in its observance. If the part which relates to fences, were to be taken to be only a portion of the law respecting division fences, it might be dispensed with by agreement between the corporation and the adjoining proprietors, and no other person would have a right to complain; and yet it cannot be doubted but that most of the public objects of the law would in this way be defeated.
I am of opinion that the statute imposes a public duty upon the railroad corporations, for a violation of which they are subject to indictment, whether individual interests are *Page 54 affected or not. Having imposed this general and public duty, the legislature has next proceeded to declare some of the consequences of its omission. The corporation in that case is to "be liable for all damages which shall be done by their agents or engines, to cattle, horses or other animals thereon." The defendant neglected to make cattle guards and fences; and for want of these safeguards, the plaintiff's cattle came upon the track of the railroad and were destroyed. We are asked to imply an exception to the positive language of the statute, and to hold that unless the plaintiff's cattle are shown to have been lawfully in the highway or in the adjoining field, the case is not within the spirit of the act. This position can only be maintained by assimulating the act to the law respecting division fences; and if I am right in supposing that the legislature had in view the more important objects referred to, and really intended to compel the railroads to be kept fenced, and protected by cattle guards against animals straying thereon from highways, there is no ground for that interpretation. I am satisfied that the design of the section is to require the railroad companies to inclose their track within substantial fences, and to guard it by the ditches called cattle guards, from the approach of animals wandering on the highways, and that one method provided for securing that object is the provision charging the companies with damages for all injuries done to animals, where they have disregarded the statute; and moreover, that it is not material from whence or under what circumstances the animals come upon the track, provided they are enabled to get there by the absence of fences or cattle guards. The case of a person willfully driving his cattle upon a railroad track, would involve the application of another principle. No one can charge another with damages which he has willfully brought upon himself, for volenti non fitinjuria.
The court of queen's bench has taken a similar view of a provision in an English railroad act of the same general *Page 55 purport, but less strong in its language. (Fawcett v. The Yorkand North Midland Railway Co., 2 Eng. Law and Eq Rep., 289.)
I am also in favor of reversing the judgment of the supreme court.
GARDINER, C.J., JOHNSON and DEAN, Js., were also in favor of reversing the judgment of the supreme court at general term, and affirming that rendered by the referee.
HAND, J., dissented. CRIPPEN, J., took no part in the decision.
Judgment accordingly.