The only exception that presents any question for discussion was taken by the defendant to the denial of its motion to nonsuit made at the close of the evidence. That motion was based upon the following grounds: 1. That the engine which struck the team did not belong to the defendant, but to the New York and New England Railroad Company, "which had a joint right with the defendant and was jointly liable, if anybody was liable, to see that there were fences there before they had a right to run an engine over this railroad track." 2. That the railroad is substantially fenced upon the side from which the team came, and there is no requirement in the statute that the fence should be on the line distinctly between the adjoining owner and the railroad, but it may be upon any line which answers the purpose. 3. That the driver of the team was guilty of contributory negligence. 4. That the owner of the land, having required a covenant from the defendant that the place should be left open, would have no right of action if his own stock went upon the track from the adjoining land, and his licensees, or all people who came to his mill, stand in the same position that he would.
The statute requires that "every railroad corporation whose line of road is open for use shall, within three months after the passage of this act, and every railroad company formed or to be formed, but whose lines are not opened for use, shall, before the lines of such railroad are opened, erect and thereafter maintain fences on the sides of their roads; * * * and so long as such fences * * * shall not be made, and, when not in good repair, such railroad corporation and its agents shall be liable for damages which shall be done by the agents or engines of any such corporation to any cattle, horses, sheep or hogs thereon; and when such fences * * * shall have been duly made, and shall be kept in good repair, such railroad corporation shall not be liable for any such damages *Page 578 unless negligently and willfully done." (Laws of 1850, chap. 140, § 44, as amended by Laws of 1854, chap. 282, § 8.)
The learned counsel for the defendant says, in his points, that "the statute is penal and cuts off the defense of contributory negligence," so that we are relieved from the duty of examining the case with reference to the subject of negligence on the part of the driver of the team. The substantial question, therefore, is whether the defendant is liable, inasmuch as the injury was inflicted by an engine that did not actually belong to it.
By a written agreement between the two railroad companies, the New England road was allowed "to run freight and passenger trains upon the tracks of the railroad" belonging to the defendant, which covenanted "to keep its said railroad, so to be used by the parties hereto jointly, in good and proper order for the safe operation thereof by both parties." The New England road agreed to pay a stipulated sum annually "for the use of said track," and that its trains should be "run, operated and controlled according to the time tables, rules and regulations of" the defendant.
It is evident, from these provisions, that this case does not come within Ditchett v. S.D. P.M.R.R. Co. (67 N.Y. 425), because the defendant and lessor in that case had parted with the possession and control of the road and its appurtenances for the term of ninety-nine years, and the lessee had covenanted to see that the demised property was properly cared for. At the date of the lease the fence was in good condition, but a section thereof fell down after the lessee took possession.
In this case the New England road had neither possession nor control of the railroad, but simply a right of passage for its trains, subject to the rules and regulations of the defendant, which had never built a fence at the point in question, although it was organized in 1867.
It has been held that to create a liability under the statute there must be some action on the part of the corporation, by its mechanical or other agents, producing the injury, and, *Page 579 hence, that there is no liability for the value of a colt, which, although it went upon the track because the fence was down, was not injured by a train, but by falling into the open spaces between the ties of a bridge. (Knight v. N.Y., L.E. W.R.R.Co., 99 N.Y. 25.) That case has no application to this, as the plaintiffs' horses were killed by an engine; but whose engine was it in the eye of the law, considering the circumstances and the evils that the legislature intended to prevent? If a railroad company should use a borrowed engine, could it escape liability? Why not, if the statute is to be strictly construed? The obvious answer to this question is that such a construction would defeat the object of the statute. Why, then, should a company that permits the engine of another to run upon its track while it is in possession and control of the railroad be relieved of responsibility?
The object of the section, as it has been held repeatedly, is to protect passengers upon railroad trains from accidents, as well as to prevent loss to owners of horses and cattle. (Corwin v. N.Y. E.R.R. Co., 13 N.Y. 42, 48; Shepard v. B., N.Y. E.R.R. Co., 35 id. 641, 643; Brady v. R. S.R.R. Co., 1 Hun, 378, 380.) "One method provided for securing that object," as was said by Judge DENIO in the Corwin Case, "is the provision charging the companies with damages for all injuries done to animals where they have disregarded the statute; and, moreover, 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." (p. 54.)
It was enacted, as was said in another case, "from public considerations. Its purpose was to protect the traveling public, as well as farmers along the line of railroads, and it should receive such a construction as to afford the protection designed." (Purdy v. N.Y. N.H.R.R. Co., 61 N.Y. 353, 355.) "It should receive a liberal construction to effectuate the benign purpose of its framers." (Tracy v. T. B.R.R. Co.,38 N.Y. 433, 437.)
It was of no concern to the public or to the plaintiffs *Page 580 whether the strict legal title to the engine that killed the horses was in the defendant or in some other corporation, as long as it was running upon the defendant's track by its invitation, under its regulations, and, indirectly, at least, for its benefit. Sound public policy requires that all trains that are permitted by a railroad company to run upon its track while it is in full possession, should be treated as its trains for the purpose of enforcing the statutory liability for operating the road before it is properly fenced. The defendant had no right to open its line for the use even of its own trains until it had complied with the fencing statute, and when it gave a right of passage to the trains of another corporation it made those trains its own, so far as a violation of the law is concerned. While the engine that did the mischief did not belong to the defendant in the ordinary sense of the strict ownership of property, still, within the broad purview of the statute, passed for the protection of the public and essential to the safety of passengers, I think that any engine which passed over the defendant's road with its consent, and, in a measure, under its control, should be regarded as the engine of the defendant. This position is supported by well considered decisions in other states, made when similar statutes were under consideration, and it is in conflict with no authority to which our attention has been called. (Fontaine v. S.P.R.R. Co., 54 Cal. 645;I.C.R.R. Co. v. Kanouse, 39 Ill. 272; T.P. W.R.R. Co. v.Rennbold, 46 id. 143; E. St. L. C.R. Co. v. Gerber, 82 id. 362; Clement v. Canfield, 28 Vt. 302.)
The claim of the defendant that its road was substantially fenced upon the south rests upon the theory that the mill itself was a fence, or stood in the place of a fence. There was no fence, however, between the vacant land in front of the mill and the land of the defendant. If there had been, as the uncontradicted evidence shows, the accident could not have happened.
It is doubtful whether any question was raised upon the trial as to the necessity of a fence at the place in question under that part of the statute which provides that "no railroad corporation *Page 581 shall be required to fence the sides of its road, except when such fence is necessary to prevent horses, cattle, sheep and hogs from getting onto the track of the railroad from the lands adjoining the same." (Laws of 1854, chap. 282, § 8.) Assuming, however, that the question is before us, it should be answered in the light of the rule already alluded to, that the statute should be liberally construed so as to afford the public adequate protection. The command of the statute to all railroad corporations is to erect and maintain fences on the sides of their roads, except when no fence is necessary to prevent horses, etc., from getting onto the track. If the defendant claimed that the locality under consideration came within the exception, it was its duty to show it. It is certain that if there had been a fence of the proper heighth and strength in front of the mill the horses could not have gone upon the track. It is also certain that there was nothing to prevent the various animals named in the statute from straying down the lane leading from the highway to the mill, and, turning to the west, reaching the open space in front thereof, and thence going upon the track as these horses did. It was the aim of the legislature to prevent animals from entering upon the railroad track from the adjoining lands, and wherever a fence is necessary for that purpose the law requires the company to erect it, and inconvenience is no excuse for failing to comply with the requirement. (Bradley v. B., N.Y. E.R.R. Co., 34 N.Y. 427; Brace v. N.Y.C.R.R. Co., 27 id. 269.) Was a fence necessary for this purpose at the point in question? "The plain answer would seem to be," as this court said in Shepard v. B., N.Y. E.R.R. Co. (35 N.Y. 646) "that it was necessary, * * * as the facts proved." It was further said in that case that the amendment of 1854, quoted above, "was probably aimed at rivers or lakes through whose borders the railroads might run, and where a fence would be unnecessary; or, in other cases, where high rocks or other obstructions would render it unnecessary to fence against the invasion of cattle." In other words, a fence is necessary wherever cattle *Page 582 can get upon the railroad track from the adjoining lands. This would not apply to highway crossings, of course, as cattle guards, required by the same statute, furnish the only protection that is there practicable; or to that part of a railroad that runs lengthwise upon a highway, where fences would interfere with the rights of the public.
But does the statute apply to horses harnessed and hitched to a wagon? Why not, if they have escaped from the control of the driver? Is a horse less dangerous upon a railroad track because he is harnessed? Does the statute except horses of a certain kind or under certain circumstances? On the contrary, it says that until the fence is built the company shall be liable for the damages done to any horses. This is not the case of a traveler upon a highway with his horses in custody, as in Ditchett v.S.D. P.M.R.R. Co. (67 N.Y. 425, 428). The horses of the plaintiffs had escaped from custody and went directly from the adjoining lands, which were no part of the highway, onto the track. Although a part of the wagon, as it stood in front of the mill, may have projected for an inch or two over upon the land of the defendant, neither of the horses stood upon such land, and there was no visible boundary between the property of the company and that of the owner of the mill. (Jewhurst v. City ofSyracuse, 108 N.Y. 303.)
The covenant contained in the conveyance of the right of way cannot override the statute nor relieve the defendant from the duty imposed thereby. The plaintiffs were strangers to that covenant, and, so far as appears, did not even know of its existence. If a railroad company can get its right of way cheaper by entering into an agreement with the owner that no fence shall be built upon the land conveyed, it cannot be allowed to claim the protection thereof as against a stranger sueing for damages caused by a violation of the statute requiring the erection of fences.
I think that the judgment should be affirmed, with costs.
POTTER, PARKER and HAIGHT, JJ., concur with FOLLETT, Ch. J. BRADLEY and BROWN, JJ., concur with VANN, J., in *Page 583 his views, and dissent as to points discussed in the prevailing opinions. All concur with VANN, J., as to first question discussed by him.
Judgment reversed.