The complaint in this case does not make any charge of negligence in the management of the engine, or in running upon the road, as producing the accident; but puts the cause upon the naked point that there should have been a guard, or what is called a cattle-guard, at the entrance upon the bridge at the end of Second-street in Waterford. The defendants insist that the bridge furnished a passage way to the people on Hauver island. But I find nothing in their charter that requires the defendants to furnish such way; and if the law require a cattle-guard at this place, the defendants cannot make any bargain with individuals, that will exonerate them *393from the performance of a duty imposed upon them by statute. The case then depends upon the construction of the statute. It is conceded that a street reaches quite to the bridge; but no road or street crosses the railroad at this place, nor within some distance. The statute of 1848 required rail-road companies to construct and maintain cattle-guards at all road-crossings, sufficient and suitable to prevent cattle and animals from getting on the railroad; and until this was done, they were liable for all damages done to them. (Laws of 1848, ch. 140, § 42.) And also by the act of 1850, (Laws of 1850, ch. 140, § 44,) they are to construct and maintain cattle-guards at all road-crossings, suitable and sufficient to prevent cattle and animals from getting on to the railroad. This action was commenced on the first of April, 1850, and the railroad act of that session took effect on the 2d day of April of that year. So no question arises as to which act controls the case; unless it is affected by the subsequent repeal of the first act.
But neither the provisions of the act of 1850, or its repealing clause, took away the plaintiff’s cause of action, if he had any under the act of 1848. It was not a penalty that he claimed, but damages for an injury to his property; and if by the law of the land he had a right of action for that, it was not taken away by the repeal of the statute.
But the company, by that law, were not obliged to make a cattle-guard at the end of this bridge. Admitting, what it is not necessary now to decide, that, had this been at the end of a common highway in the country, the defendants would have been liable, still they are not in this case. It was not a “ road-crossing” within the meaning of the statute. The sections in relation to ringing bells and putting up boards to give warning, require these acts to be done at the crossings of roads or streets. But cattle-guards in the streets of a city or village would be nuisances. The requirement, as to them, is on road-crossings; the statute very properly making an obvious distinction between roads and streets. If then the defendants are liable to make good this loss for want of cattle-guards, it must be on the ground of negligence, irrespective of the statute. It may be negligence not *394to have some guard or protection at this place. But, as we have seen, the case is not placed upon that foundation in the complaint, nor was any proof given upon that question nor was that point taken in the court below.
[Essex General Term, July 7, 1851.Willard, Hand and Cady, Justices.]
It follows that the judgment must be reversed.