The referee, before whom this action was tried, dismissed the complaint, because the facts proven in evidence did not sustain the case.
The judgment entered for the defendants on his report was reversed by the General Term of the Supreme Court, seventh district, and a new trial was ordered.
The defendants now appeal from that order, and have stipulated that an absolute judgment be entered against them if the order be affirmed.
The action is brought to recover the value of a horse belonging to the plaintiff, which was killed by the engine of an express train while passing along the line of the railroad track of the company near their depot at Kanona. It appears from the report that there were no cattle guards where the railroad crosses two public highways near the depot, and that the track was not inclosed by a fence at another point, also near the depot, where a lane, leading from another highway running parallel to the railroad, intersects with the track of the defendants.
The horse could not have reached the track of the railroad, nor the depot grounds where he was killed, if the track had been fenced in at the lane, nor if cattle guards had been constructed at the points where the track intersected the highway. The depot was more accessible to the public without them.
The railroad act directs that fences and cattle guards shall be constructed and maintained, and declares that the corporation shall be liable for all damage done by their agents and engines to any cattle, horses, sheep, c., along their line, unless such fences and guards are constructed and kept in repair; and after they are constructed, and while kept in repair, they shall not be liable for such injuries. (2 R.S., 5th ed., 689, 690, §§ 55, 56.)
The statute prescribes a duty, and imposes a penalty in case of its neglect, from which the corporation are to be wholly relieved in a compliance therewith.
The rule of construction prescribes that statutes imposing penalties, in case they are disobeyed, shall be held to be *Page 432 mandatory, and that courts shall not then consider the circumstances of a case, or its hardships or inconvenience. The intention of the legislature in such cases cannot be held to be different from that which they have by their language declared.
If the construction of fences and guards, or their repair, is neglected, a railroad company can be relieved from liability for injuries to cattle, horses, c., only by employing a sufficient watch to prevent estrays from coming on to their track. The statute so declares, and public policy requires it.
It is no excuse that the cattle, horses, c., were at large in violation of law. (Corwin v. The New York and Erie RailroadCompany, 3 Kern., 42.)
The order appealed from should be affirmed with costs, and the judgment against the defendants be made absolute.
Order affirmed and judgment absolute. *Page 433