It is by no means clear that the law requiring railroad companies to construct and maintain cattle guards at all road crossings, has any application to this case. That law was passed long after the charter of the defendants was granted, and is, by § 46 of laws of 1848, (chap. 140,) and § 44 of laws of 1850, (chap. 140,) made applicable to existing corporations, so far as is not inconsistent with the provisions of their charter. The privilege which the defendants have of using the Fourth Avenue and other streets within the limits of this city, certainly involves some qualification of the terms of the section referred to. For the construction of such cattle guards as the act requires, at all road crossings in the city, would render the Fourth Avenue, the Bowery, Centre-street, &c., impassable. This would so far conflict with other rights and interests which demand the use of those streets free from such obstructions, that if the law had expressly mentioned them, it must have been, I think, deemed void. I think it has no application to these streets, so far at least as they are in actual use as public highways.
But without expressing any opinion in respect to the application of the law to the place where the horse in question was killed, I think the judgment should be reversed upon another ground.
I fully concur with the conclusions to which the Supreme Court arrived in Marsh v. The New York and Erie Railroad Company, 14 Barb. 364, that the railroad company are not responsible for injuries done by their cars to cattle who are carelessly and negligently suffered by their owners to go at large and stray upon their road. The law requiring the construction of cattle guards was not made to encourage the negligence of the owners of cattle, or indemnify them against its probable consequences.
I think, therefore, that the judge of the court below ought to have charged the jury in this respect as requested by- the defendants’ counsel, if he did not go further and charge, as *259he might have done, that the defendants were entitled to a verdict.
The judgment must, I think, he reversed.
Judgment reversed.