[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 351 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 353
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 354 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 356
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 357 It was competent for the Tonawanda Railroad Company, by voluntary cession or by appropriation, to acquire the title to lands which they were authorized to use for the purpose of constructing a railway and maintaining the same during the existence of their charter. (Laws of 1832, p. 427.) The declaration assumes that the company owned and were possessed of the land occupied by their railway, and the chief ground of complaint is, that the plaintiff's cattle having strayed thereon were destroyed by the carelessness and negligence of the company in propelling their engine and cars. It is immaterial whether or not the company were entitled to the site of their railway in fee simple. They had a clear right to the exclusive use of the land, while it was necessary for the enjoyment of their chartered privileges; and at any rate the plaintiff was not in a condition to show that he owned the land where the oxen were killed, because every count in his declaration was framed upon the express assumption of the contrary, so that the defendants stood in court as the conceded proprietors of the site of their railway. The plaintiff was not at liberty to shift his ground, and to question on the trial what he had admitted in his pleadings.
Assuming then that the plaintiff's oxen were on the land of the defendants without right, it was entirely immaterial that the pasture in which they had been kept was well fenced, or that they were quiet and orderly. This evidence, if it were designed to controvert the fact that the oxen went astray upon the lands of the company, was clearly improper under a declaration which conceded that fact; and if it were offered with a view to show that it was through the misfortune rather than the fault of the plaintiff, that the cattle went astray, it could not avail him, since it would neither justify nor excuse their being on the defendants' land.
The main question in this case is presented by the plaintiff's offer to prove that the defendants were guilty of negligence, and that by the exercise of ordinary care on their part, the accident might have been avoided. Taking this as proved, the case stands thus: The defendants, in the rightful use of their railway, *Page 358 while propelling an engine with cars attached, and running at a low rate of speed, struck and killed the plaintiff's oxen, which had strayed on the track of the railway and were trespassing at the time. This result might have been avoided by the exercise of ordinary care on the part of the defendants, whose negligence contributed to produce the injury complained of; and the question is whether, under such circumstances, the plaintiff can maintain his action. It is obvious that the plaintiff would have received no injury, if the oxen had not been on the track of the railway; and having been there without right, the law imputes a fault to the plaintiff. On the other hand, although the plaintiff was in fault, the injury would not have happened but for negligence and the want of ordinary care on the part of the defendants; and assuming this to have been a fault on their part, the injury then would appear to have resulted from the common fault of both parties. But if we were permitted to inquire as to the degree of blame which attached to each, we should be obliged to pronounce that the principal fault must be attributed to the plaintiff, and without the previous existence of which, the defendants could not have been required, in the proper use of their railway, to abate their speed, or take any precaution whatever for the protection of the plaintiff's property. The case is stronger for the defendants than if it had arisen on a highway between persons in the enjoyment of the common right of travel, and where the injury resulted from the negligence of both parties. The plaintiff in such a case would start by showing himself in the exercise of a lawful right — and yet if it appeared that his own negligence or unskilfulness in any way conduced to bring about the injury complained of, he could not recover, whatever might have been the negligence of the defendant. The law will not in such a case attempt nicely to adjust the degree of blame to be assigned to the respective parties; and will not recognize any act as an injury to either, which they mutually contributed to produce. And so far has this doctrine been carried, that a person injured by an obstruction placed unlawfully in a highway, has been denied a right of action for damages where it appeared that he had failed to *Page 359 use ordinary care, by which the injury might have been avoided. The plaintiff, before he can stand in court as an accuser, must himself be free from fault. He can not support his action by basing it partly on his own wrong, and partly on the wrong of his adversary. He is answered, when it appears that he has been wanting in duty, or has contributed to his own injury. He has then volunteered to suffer, and the law sees no wrong in the case. So that, whenever it appears that the plaintiff's negligence or wrongful act had a material effect in producing the injury, or substantially contributed toward it, he is not entitled to recover. To this rule there seems to be no exception, which can be made applicable to the case under consideration. Lord Denman, in Lynch v. Nurdin, (1 Ad. Ellis, 29,) allowed an exception in favor of the plaintiff, a child seven years old, who received an injury by getting into the defendant's cart while it was carelessly left in the street. This decision has not however been followed in this state; but the negligence and imprudence of the parents or guardians in allowing a child of tender years to be exposed to injury in the highway, has been held to furnish the same answer to an action by the child, as the negligence or other fault of an adult plaintiff would have done in a similar case. (Hartfield v. Roper, 21 Wend. 615;Brown v. Maxwell, 6 Hill, 592.)
It is not deemed necessary, after the very able and satisfactory review of the authorities bearing on this subject, which was made in this case by Ch. J. Beardsley, as reported in 5Denio, 255, to dwell at length upon the cases to which we have been referred upon the present argument. Suffice it to say, that applying the principle of these cases to the facts before us, we are led to the conclusion, that as the defendants were in the lawful exercise and enjoyment of their rights, and would have done no injury to the plaintiff, if his oxen had not strayed on the track of the railway; and as they were there without right, in respect to them the law did not enjoin it as a duty on the defendants to take care not to injure them. The want therefore of such care was not in judgment of law a fault to be attributed to the defendants; but if it could be so considered, the plaintiff having *Page 360 also been in fault, by which he contributed to produce the injury is not entitled to recover. (Pluckwell v. Wilson, 4 Car. P. 375; Williams v. Holland, 6 id. 23; Woolf v. Beard, 8 id. 373; Sills v. Brown, 9 id. 601; Hill v. Warren, 2 Stark. 332; Smith v. Smith, 2 Pick. 621; Lane v.Cromlin, 12 id. 177; Sarck v. Blackburn, 4 Carr. Payne, 297; Blyth v. Topham, Cro. Jac. 158; Burckle v.N.Y. Dry Dock Co. 2 Hall, 151; Ruthbun v. Payne, 19Wend. 399; Bush v. Brainard, 1 Cowen, 88.) The judgment of the supreme court must be affirmed.
Judgment affirmed.