There is a single question in this case, viz.: whether the duty was enjoined by law on the defendants to maintain a cattle guard at the crossing, near where the plaintiff's horse was killed. The general railroad act of 1850 provided that corporations formed under the act should "construct and maintain cattle guards atall road crossings, suitable and sufficient to prevent cattle and animals from getting on the railroad; and until such cattle guards shall be duly made, the corporation and its agents shall be liable for all damages which shall be done by their agents or engines to cattle, horses or other animals thereon; and after such guards shall be duly made and maintained, the corporation shall not be liable for any such damages, unless negligently or wilfully done." (Laws of 1850, chap. 140, § 44.) In 1854 this section of the general act was amended so as to require all railroad companies "to construct, when the same has not already been done, and thereafter maintain cattle guards at all roadcrossings, suitable and sufficient to prevent cattle, horses, sheep and hogs from *Page 275 getting on such railroad." And the same liability for an omission was imposed as by the general act. (Laws of 1854, chap. 282, § 8.) In Corwin v. The New York Erie Railroad Company (3 Kern., 42), it was held that this duty to construct and maintain cattle guards at road crossings rested on the railroad corporation; and as one of the consequences of the neglect or omission, the corporation was to be liable (irrespective of any negligence in their owner) for all damages that should be done by its agents or engines to cattle, horses or other animals on its railroad. It is not denied by the defendants that the statute imposes the duty on them to build and maintain cattle guards at "road crossings," but they contend that the statute does not apply to streets in cities and villages; and as Gasport, where the injury happened, was a village, they were not bound to keep or maintain any cattle guard at that place.
The whole force of the defendants' point, in this respect, consists in a criticism on the words, "road crossing," in the statute; they contending that road, as used in the statute, means only a highway in the country, and that the term road crossing, does not embrace, nor was it so intended, a place in a village where the railroad intersects or crosses a street thereof. The suggestion receives no countenance from the statutes of 1848 and 1850, in relation to the organization and powers of railroad corporations. A glance at those acts will show clearly, that in numerous instances, the terms road and highway mean and include streets, and that they are used synonymously. The power to construct the railroad across a road, highway, canal, c., under the act of 1848, clearly embraced streets in a village. If it did not, then these railroad companies had no power to cross a street. By the act of 1850, it was provided, that when the railroad crosses a highway, the highway may be carried under or over the railroad. Here, neither roads or streets are mentioned, but they are manifestly embraced in the term highway. It cannot be doubted that this provision applies to streets, and to cities and villages. So, also, the engine bell is to be rung eighty rods from the place where the railroad shall cross any traveled public road *Page 276 or street, or a steam whistle is to be sounded that distance from the place where the road shall cross any such road or street, except in cities. Boards, painted with the warning, "Railroad crossing," c., are to be maintained across each traveled public road or street, on the same level, c.; but this section is not to apply to streets in cities or villages, unless the railroad company shall be required to put up such boards, by the officers having charge of such streets. (Laws of 1850, chapter 140, §§ 24, 39, 40.) The various exceptions of cities and villages, and sometimes cities alone, and the reference to the trustees of villages, c., indicate that when a village was intended to be excepted, it was specifically mentioned.
I find nothing in the statute from which it may be fairly inferred that the legislature intended to limit the duty of railroad corporations to the maintenance of cattle guards at crossings of public roads or thoroughfares outside of villages. They certainly have not said so in terms; and the phrase "at all road crossings" is quite comprehensive enough to include all crossings of public highways, whether called streets in a village or roads outside thereof. The reason and declared object of the statute for maintaining these cattle guards is to prevent cattle from getting on the railroad. This is as necessary in villages as elsewhere. It is claimed that a cattle guard in a village would be a nuisance. Practically, it might, in some instances, be a public inconvenience; but it cannot be a public nuisance, if authorized, and indeed required, to be maintained by public authority. These guards are not on the road or street, but beyond it on the private property of the railroad company.
The judge directed a verdict for the plaintiff, subject to the opinion of the Supreme Court, at general term. As there was a motion for a nonsuit, which was denied, and an exception taken, I was inclined, originally, to the conclusion that there had been a mistrial, but, upon reflection, am of a different opinion. It will be seen by looking into the case, that there was no controversy as to the facts, which were principally admitted. It was a mere question of law, upon undisputed *Page 277 facts, whether the railroad company was bound to maintain a cattle guard at the crossing on the east line of the Town Line road; and for the want of which the plaintiff's horse came upon its track, and was killed. The only ground upon which the plaintiff claimed to recover, was that the defendants were thus bound. If they were not, for the reason the crossing was of a street in a village, to which the statute did not apply, it was conceded there could be no recovery.
The judgment of the Supreme Court should be affirmed.
All the rest of the judges were for affirmance, but restricted their judgment to the case of cattle guards to be constructed within the limits of the railroad at the places where it crosses a street, being of the opinion that the statutes do not contemplate that, where a railroad running along a street is crossed by another street, passage in the latter is to be impeded by cattle guards running longitudinally along the railroad and across the street.
Judgment affirmed.