Section 52 of the Railroad Law (as amd. by Laws of 1915, chap. 281) requiring the railroad company to maintain fences has this provision: “ No railroad need be fenced, when not necessary to prevent horses, [cattle, sheep and hogs from going upon its track from the adjoining lands.” The boy lived on a farm of about 100 acres on which horses and cattle were kept. It appears that some time before this accident a cow had been killed apparently because it strayed from the farm onto the railroad. It would seem, therefore, that a jury might properly have been permitted to say that there was an absolute duty on the defendant to fence its track along the farm in question.
*285If the necessity for the fence existed the willful omission to erect it was a misdemeanor. (Penal Law, § 1984, subd. 2.)
The violation of a statute or an ordinance, if it has some connection with the injury complained of, is some evidence of negligence. (Amberg v. Kinley, 214 N. Y. 531, 536; Fluker v. Ziegele Brewing Co., 201 id. 40; Union Pacific R. Co. v. McDonald, 152 U. S. 262; Kelley v. N. Y. State Railways, 207 N. Y. 342.)
In Union Pacific R. Co. v. McDonald (supra) there was a statute requiring that ground covered with slack coal in such quantities as to produce spontaneous combustion should be fenced “ in such manner as to prevent loose cattle or horses from having access to such slack piles ” and making the violation of the act a misdemeanor. The railroad company failed to observe this statute and a boy on its premises fell into the burning slack and was injured. The court said: “ Primarily, that statute was intended for the protection of cattle and horses. But it was not, for that reason, wholly inapplicable to the present case upon the issue as to negligence. * * * The non-performance by the railroad company of the duty imposed by statute, of putting a fence around its slack pit, was a breach of its duty to the public and, therefore, evidence of negligence for which it was liable in this case, if the injuries in question were, in a substantial sense, the result of such violation of duty.” That case was cited in Kelly v. N. Y. State Railways (supra). I am unable to distinguish those cases in principle from the instant case.
The cases of Knight v. New York, Lake Erie & W. R. R. Co. (99 N. Y. 25) and Jimerson v. Erie R. R. Co. (203 id. 518) are distinguishable. Both of those actions were for injuries to domestic animals in falling through bridges on the tracks and turned on the express provision in the statute limiting liability in respect to animals. In the Jimerson case Chief Judge Cullen quotes from the Knight case where it was stated that the statute does not leave the question open as bo liability to the owners of cattle and horses but that it defines in express terms the consequences of liability to such owners “ for damages which shall be done by the engines or agents of any such corporation,” and adds: “ It was held that the bridge was not an agent and that the defendant was not liable.”
*286On the other hand, the case of Donnegan v. Erhardt (119 N. Y. 468) establishes that there may be a liability for personal injuries for a failure to comply with this very statute.
I think, therefore, the judgment should be reversed.
Judgment reversed and new trial granted, with costs to the appellant to abide the event.