The plaintiff’s horses, at seven o’clock on the evening of April 15, 189.4, were at the farm of his son, Jerry Connolly. During the night they strayed to the pasture of one Cushing, a mile and a half distant, .and from the pasture through an open barway on the south side of defendant’s railroad on to its tracks, where they were struck by an engine and killed. There was sufficient evidence produced to justify a finding by the jury that the barway had remained open during the preceding winter and up to within a week of the accident, and it was not denied that it was open on the night that the horses were killed; who opened it and left it open does not appear.
*223The plaintiff brought this action to recover the value of the horses, and obtained a judgment from which the defendant appeals.
Under the provisions of the Railroad Law (Chap. 565, Laws 1890, § 82) as finally amended by chapter 676 of the Laws of 1892, it was the duty of the defendant to “ erect and thereafter maintain fences on the sides of its road of height and strength sufficient to prevent cattle, horses, sheep and hogs from going upon its road from the adjacent' lands.” The bars placed at the place in question for the accommodation of the adjoining landowners was a part of the fence it was bound to maintain. It cannot be deemed to home maintained a fence sufficient to prevent cattle and horses from getting upon its tracks if it knowingly suffered openings to remain in such fence, either by the bars wdiich formed a part thereof being taken down or otherwise. It will be observed that the statute cast the duty of maintaining the fence, not upon the adjoining landowner, but upon the corporation.
It is probable that had Cushing, the adjoining landowner, opened and left open the barway in question, and afterwards his cattle had strayed upon the track, he could not have recovered their value of the defendant, for the reason that in such a supposed case his negligence would have caused or contributed to the injury. Thus in The Diamond Brick Co. v. N. Y. C. & H. R. R. R. Co. (58 Hun, 396), cited by the learned counsel for the appellant, where the plaintiff had pastured its horse in the field of one owning land adjoining the defendant’s road, from which there was a gate for the accommodation of such owner leading thereon, which gate the owner habitually left open, it was said in the opinion: “ If this is neglect on the part of the company arising from a failure to shut the gate, why is it not neglect on the part of the owner to leave it open while using it for the purpose of the farm, from day to day, all summer, or a great portion of the summer ? She. took her risk * * * and she hired the pasturage to the plaintiff upon the same condition.” Under the circumstances of that case it was held that the plaintiff could not recover.
The facts in this case are different. ' The plaintiff was not the owner of the pasture in question. His horses strayed into such pasture from his son’s premises, a mile and a half distant; also, it was not shown that Cushing, the owner of the pasture, for whose accom*224mbdation the barway was made in the fence, ever opened and left said! barway open. = It was shown that he went through the barway once When it Was open, and did not close it; but it did not. appear that oh that occasion he took out the bars. It is.-not to be presumed that Cushing was responsible for the barway being open and remaining open during the winter and spring preceding the accident., It was admitted that the horses were killed before the pasturing season had commenced, and, therefore, Cushing probably had had no business in the pasture field since the season before.
Hence the barway, being a part of the fence placed by defendant on its south line, was shown to have remained open for a long period -preceding the accident. Who opened -it,.and who- left it. open, does not appear. We think defendant, who, under the- statute^. Was compelled to maintain the fence so as to prevent animals from straying on its tracks, was negligent in-not closing up this opening in the fence. •
In Dayton v. N. Y., L. E. & W. R. R. Co. (81 Hun, 284), where the facts were quite similar to those appearing in this cáse,, the General Term of the fifth department sustained a judgment in favor of the plaintiff. In Spinner v. The N. Y. C. & H. R. R. R. Co. (6 Hun, 600; affd., 67 N. Y. 153), Mullir, P. J., said that “:a company is-bound to see to it that all gates on its road áre kept closed, and it is, liable if they are left open, even by the. persons for whose convenience .they are constructed. ' Stick owner owes no duty to the owners of cattle that may be in the highways or adjoining fields.” The same doctrine is assumed in Hungerford v. The Syracuse, Binghamton & N. Y. R. R. Co. (46 Hun, 339). In that' case Martin, J., remarks : “ The defendant Was bound to build and keep in repair fences along the sides of its track, with gates or bars, for the use of adjoining owners at farm crossings; and such gates- or bars were a part of the fence which it was bound to maintain and keep in repair. .* * ’* .Before he (plaintiff) could recover on the ground of negligence, based on the fact that the horses passed on to-, the track through the barway, he was bound' to prove -either that the defendant- had actiial notice that the bars were down, or that they had been down for such a length of time that the defendant might be presumed tó have had notice thereof through its agents or servants.”
In Chapman v. The N. Y. C. R. R. Co. (33 N. Y. 369) the *225action was brought to recover damages caused by the alleged negligence of the defendant in leaving a pair of bars down- as in this case. The bars were left down by one Ryan, who was employed by the defendant as a day laborer, in the evening, when he was engaged in his own business. But it was found that by the terms of his employment after his day labor was over, if he saw anything amiss he was to give attention to it, and he was held to be a servant of the company. Campbell, J., remarked : “ If the bars had been taken down by others, and Ryan, occupying the relation he did to the company, had seen them, or had been notified, there can be no doubt but that it would have been his duty at once to have put them up. That lie took them down himself can make no difference. The neglect of (duty was in leaving them down."
We think the court below properly submitted the case to 'the jury, and that the verdict is sustained by the evidence. We can discover no error in the charge of the trial judge in regard to the credibility of the witness De Losh. He instructed the jury that if De Losh’s testimony was relied upon, the plaintiff could not recover-; that if he put up the bars on the Saturday before the accident, sufficient time had not elapsed thereafter to give the defendant constructive notice that they were down. He said to the jury : “ If, however, you think the testimony of De Losh is not correct, or cannot he relied upon — and it is a question for you—then you have a right,” etc.; “if you believe De Losh’s testimony, and you have no right to disregard it from any capricious motive, you must give weight to his testimony, unless there are some serious reasons for distrusting' or doubting it.”
The testimony of De Losh to a certain extent conflicted with that of witnesses produced by the plaintiff. But if there was not in fact any such conflict, De Losh was a servant of the defendant. He had testified that it was his duty when he walked over the track to put the bars up when he saw them down. He was, therefore, uninterested witness, naturally desiring to shield himself from any responsibility arising from his neglect to perform this duty. A verdict for the plaintiff would necessarily convict him of a failure to perform that duty. Under the circumstances the question of his credibility was properly left to the jury. (Elwood v. The Western Union Tel. Co., 45 N. Y. 549; Wohlfahrt v. Beckert, 92 id. 490; *226Kavanagh v. Wilson, 70 id. 177; Gildersleeve v. Landon, 73 id. 609; Koehler v. Adler, 78 id. 287.)
The judgment should be affirmed, with costs.
All concurred, except Herrick, J., dissenting.