Tator v. Rutland Railroad

Van Kirk, J.

The defendant, a railroad corporation, was rebuilding its right of way fence along a field used as a cow pasture which belonged to plaintiff. An employee of defendant had told the plaintiff that they were about to rebuild the fence and asked him if he would take his cows out of the pasture and keep them out until the fence was repaired; plaintiff replied that he would take the cows out that night. This he did. A pair of horses belonging to plaintiff were in another pasture, which adjoined the cow pasture. There was a barway between the “ cow pasture ” and the “ horse pasture.” This barway plaintiff closed when he took his cows from the pasture. The horses in some manner got through this barway into the cow pasture and thence upon the railroad tracks where the right of way fence had been taken down. The horses were killed and the recovery is for their value.

In its answer the defendant alleges that the loss sustained by plaintiff was due solely to the negligence and carelessness of the plaintiff, and this is the' only, issue presented on this appeal. No defense based upon contract, waiver or estoppel is pleaded. So far as important here section 52 of the Railroad Law (as amd. by Laws of 1915, chap. 281) reads as follows: “Every railroad corporation * * u shall * * * 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. * * * So long as such fences * * * are not made, or are not in good repair, the corporation * * * shall be liable for all damages done by their agents or engines or cars to any domestic animals thereon. When made and in good repair, they shall not be liable for any such damages, unless negligently or wilfully done.” This statute is precise and clear in its meaning. Under it the railroad company is made absolutely liable, without regard to negligence on its part or on that of the plaintiff, if its fences are not maintained as the statute requires. (Shepard v. Buffalo, N. T. & E. R. R. Co., 35 N. Y. 641; Whaley v. Erie R. R. Co., 181 id. 448.)

It cannot be urged that plaintiff intentionally put his horses in jeopardy. He in good faith kept his promise made to the employee of the defendant; he kept his cattle from the cow pasture and he turned his horses, not into the cow pasture, but into the adjacent horse pasture, which was completely fenced. There was no negligence in so doing, and no other negligence is suggested.

The judgment and order should be affirmed, with costs.

Cochrane, P. J., McCann, Davis and Whttmyer, JJ., concur.

Judgment and order affirmed, with costs.