Edwards v. Buffalo, Rochester & Pittsburg Railway Co.

Ward, J. (dissenting):

The statute known as the Railroad Law (§ 32) made every railroad corporation and any lessee or other person in possession of its road ” liable under certain conditions for killing or injuring animals upon railroads that were not fenced as the statute requires. The defendant had a traffic arrangement with the Lehigh Talley Railroad Company whereby it was permitted to pass a train daily over the Lehigh road in connection with its business as a railroad corporation. When that arrangment was made and when the plaintiff’s horses were billed, the road, at the point where they were killed, was unfenced; and, in consequence thereof, the plaintiff’s horses strayed upon the track and were killed by the defendant’s train.

I think the statute under consideration should receive a fair and liberal construction. Its purpose evidently was to make any railroad corporation liable that was using an unfenced track upon which animals were killed' by its trains.

It was not necessary that the defendant should have had exclusive possession of the Lehigh road. It was only necessary that it should have the right of possession and an actual possession for the purposes of its trains.

With all due respect, I think the view taken by the majority of the court gives too limited a construction to the statute and defeats the purposes of the Legislature in enacting it.

Judgment and order reversed and a new trial ordered, with costs to abide the event.