The statutes of 1850 and 1854, requiring railroad companies to erect and maintain fences on the side of their road, with openings or gates or bars therein for the use of the proprietors of the land adjoining their railroad, we think was sufficiently complied with in this instance. The defendants had erected, constructed and maintained the proper fence and gate at the place where the accident occurred. The accident was not caused by the omission to erect or maintain the fence or gate, but from the omission to keep shut or closed the gate erected for the use of the proprietor of the adjoining land. The gate was not out of repair so far as to furnish any just ground or pretense to hold that the company had failed or omitted to erect and maintain a proper fence and gate.
Whether the defendants were responsible for the killing and injuring the plaintiff’s cattle, depended, we think, entirely upon the question, whether the said gate was at the time used by them in their business, or by their agents or persons doing business with said company, for access to their depot of road from the highway, and was left open at the time when the injury occurred by or through the carelessness or negligence of the said defendants or their agents or employes. If the defendants were accustomed to use the gate in question for their accommodation, or for the accommodation or convenience of persons doing business with them at their depot, at that point on their railroad, and, on the night in question, it was left unclosed through the carelessness of any of their agents, such negligence would be negligence of the defendants, and for which *423they would be duly responsible in this action. This question, we think, should have been submitted to the jury.
There should therefore be a new trial, with costs to abide the event.
Present — Smith, P. J., Gilbert and Talcott, JJ.
New trial ordered, costs to abide event.