#### Owen Donnegan, App’lt, *v.*Joel B. Erhardt, as Receiver, Resp’t.1

*(Court of Appeals,*

*Filed February 25, 1890.)*

1. Negligence — Railboads—Bound to maintain fence—Laws 1850, chap 140, § 44.

A railroad company is bound to use suitable care and skill in furnishing, not only adequate engines and cars, but also a safe and proper track and road-bed. The track must be properly laid and the road-bed properly constructed, and reasonable prudence and care must be exercised in keeping the track free from obstructions, animate and inanimate, and if, from want of proper care, such obstructions are permitted to be, or come upon the track, and a train is thereby wrecked and any person is injured, the railroad company is liable upon common law principles.

2. Same.

The general railroad act, Laws 1850, chap. 140, § 44, which makes the *590railroad liable for damages done by its engines to cattle, etc., so long as the fences are not properly maintained, does not limit its liability to such damages, and where plaintiff, a brakeman in defendant’s employ, was injured through a collision with a horse which had come upon the road through a fence which defendant was bound to repair, and which it had negligently permitted to be out of repair, it is liable.

Appeal from judgment of New York superior court, general term, reversing judgment in favor of plaintiff entered upon verdict of a jury.

*Hector M. Hitchings,*for app’lt; *Sherman*Harts, for resp’t.

1

 Reversing 16 N. Y. State Rep., 579.

Earl, J.

While the plaintiff, in 1887, was in the employ of the defendant as a brakeman upon a train of cars in the night time, the train came in collision with a horse upon the railroad track, and was thereby wrecked, and he was seriously injured. He brought this action to recover damages for his injuries, claiming that the horse got upon the railroad track because the defendant had carelessly and negligently permitted the fence along the railroad to become ruinous, broken down and out of repair, and that it had, therefore, violated the duty imposed upon it by § 44 of the general railroad act of 1850, which requires railroad companies to build and maintain fences on the sides of their roads of the height and strength of division fences, and that “ so long as such fences and cattle-guards shall not be made, and when not in good repair, such railroad corporation and its agents shall be liable for damages which shall be done by the agents or engines of any such corporation to any cattle, horses, sheep or hogs thereon.”

The claim of the defendant was that at common law, independently of the statute, the railroad company would not have been liable for the accident which happened to the plaintiff, and that the statute specified the extent of the liability imposed upon a railroad corporation for its omission to build or maintain fences, and that thus it was liable only for damages done to animals coming upon the railroad track through a defective fence. The trial judge, however, submitted the case to the jury, and instructed them that if this horse came upon the railroad through a fence which the defendant was bound to maintain and keep in repair, and which was negligently permitted to be out of repair, the plaintiff could recover, and the jury rendered a verdict in his favor. From the judgment entered upon the verdict the defendant appealed to the general term, and there the judgment was reversed upon the ground that the only responsibility of a railroad company for defective fences is that mentioned in the statute, and that at common law, independently of the statute, a railroad company would not have been liable to the plaintiff for the injuries sustained by him.

We think the learned general term fell into error. A railroad company, for the safety of its passengers, as well as its employees upon its engines and cars, is bound to use suitable care and skill in furnishing, not only adequate engines and cars, but also a safe and proper track and road-bed. The track must be properly laid and the road-bed properly constructed, and reasonable prudence *591and care must oe exercised in keeping the track free from obstructions, animate and inanimate; and if from want of proper care such obstructions are permitted to be, or come upon the track, and a train is thereby wrecked, and any person thereon is injured, the railroad company upon plain common law principles must be held responsible. Experience shows that animals may stray upon a railroad track, and that if they do there is danger that a train may come in collision with them and be wrecked; and adequate measures, reasonable in their nature, must be taken to guard against such danger. Independently of any statutory requirement, a jury might find upon the facts of a case that it was the duty of a railroad company to fence its track to guard against such danger.

But whatever the rule would be independently of the statute, there is no reasonable doubt that it imposes the absolute duty upon a railroad company to fence its tracks. That duty it is. reasonable to suppose was imposed not only to protect the lives of animals but also to protect human beings upon railroad trains. It is made an unqualified duty, and for a violation thereof causing injury the railroad company incurs responsibility. The sole consequence of an omission of the statutory duty is not specified, and was not intended to be specified in the statute. Responsibility for injuries to animals was specially imposed because in most cases there would, independently of the statute, have been no such responsibility, as at common law the owner of animals was bound to restrain ihem, and if they trespassed upon a railroad there was no liability for their destruction, unless it was wilfully or intentionally caused.

We are therefore of the opinion that the railroad company was responsible to the plaintiff for the injuries which he received without any fault on his part, and for this conclusion there is much authority in judicial utterances to be found in the books. *Corwin*v. *New York & Erie R. R. Co.,*13 N. Y., 42; *Jetier*v. *N. Y. & Harlem, R. R. Co.,*2 Keyes, 162; *Staats*v. *Hudson River R. R. Co.,*3 id., 196; *Brown*v. *N.Y. C. R. R. Co.,*34 N. Y., 404; *Shepard*v. *Buffalo N. Y. & E. R. R. Co.,*35 id., 641; *Purdy*v. *N. Y. & N. H. R. R. Co.,*61 id., 353; *Jones*v. *Seligman,*81 id., 190; *Graham*v. *Prest, etc., Delaware & Hudson Canal Co.,*46 Hun, 386; 12 N. Y. State Rep., 390.

The case of *Langlois*v. *Buffalo & Rochester R. R. Co.,*19 Barb., 364, so far as it holds a different doctrine, does not meet with our approval.

The order of the general term should therefore be reversed and the judgment entered upon the verdict affirmed, with costs.

All concur.