The ground upon which it is claimed the defendants are liable in this case, is, that it was their duty as owners of their road, in respect to their servants employed on their engines, to erect, maintain and keep in repair, good and sufficient fences along the track of their road, and separating their road from the adjoining lands at the place where the injury in question occurred; and that they neglected to perform that duty, whereby the injury was occasioned. The existence of the duty is an essential element in the position ; without it, there is no negligence, and consequently no “liability. By § 44 of “ the act to authorize the formation of rail road corporations and to regulate the same,” (Laws of 1850, p. 233,) which is applicable to the defendants, to a qualified extent, (Id. p. 465, 468, § 6,) an obligation is imposed upon rail road corporations to erect and maintain fences on the sides of their road; and the consequence of omitting to do so by any corporation is declared to be, that “ the corporation and its agents shall be liable for all damages which shall be done by their agents or engines to cattle, horses or other animals thereon.” The duty under this statute provision, is one in respect to the owners of such animals, only; and the liability prescribed is all that is incurred by a violation of it. There is no other statute imposing a duty upon the defendants to fence their road ; and hence if the duty alleged in this case existed, it must rest on the common law. It must arise from the principle that by the common law such *370corporations are required to use ordinary care for the safety of their servants. Did ordinary care by the defendants, for the safety of the son of the plaintiff, demand the fences which the defendants are charged with neglect in not making ? It is not shown that there was any special necessity for fences at the point where the injury occurred, nor is it alleged that there was any want of care, on the part of the defendants, except in not providing fences. Did, then, ordinary care require such fences whatever circumstances existed having reference to the necessity of fences at that place, and whatever other precautions were employed, to prevent accidents ? If not, the plaintiff fails to maintain the duty he asserts, and of the breach of which he complains.
[Monroe Special Term, January, 2, 1854,T. R. Strong, J. Affirmed on appeal, at the Monroe General Term, March 5,1855, held by Selden, Johnson and T. R. Strong, Justices.]
It is undoubtedly true that fences along our lines of rail roads, protecting the tracks from cattle on adjoining lands, are an important . measure of security, both to the agents and servants of rail road corporations, and to the public ; but in the absence of a legislative provision making their erection an absolute duty to the public, can the courts properly impose it as a duty, and hold its non-performance, per se, negligence, disregarding all other circumstances ?
•I do not feel at liberty to go to the extent which this case calls for, upon the question of the duty of the defendants, in order to maintain the action, and must therefore order judgment in favor of the defendants, on the .demurrer, with leave to the plaintiff to amend on payment of costs.