Dolan v. Newburgh, Dutchess & Conn. R. R.

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 573 The mill stands fifty-nine feet, four and one-half inches south of the center line of the railroad. Five feet of the space between the mill and the land of the railroad is occupied by a platform in front of the mill, which is ten feet long and about as high as the top of a wagon. The boundary line between the mill property and the railroad land is but four feet and ten inches north of the north edge of the *Page 575 platform. Teams, in approaching the mill and while standing at it, occupy a part of the right of way of the railroad. East and west of the mill and on the south side of the railroad it is fenced, and it is fenced on its north side, except where the lane which leads to the mill crosses the track. When the right of way was granted from the mill property its owner bound the railroad to leave its land opposite his mill unfenced so as to permit free passage to and from it. This mill was about 150 feet west of the freight depot and the railroad land in front of it may be said to form an extension of the station grounds. This being the situation, the agent of the owners of the team drove it on this strip of land, stopped in front of the mill and there left it standing, partly on the land belonging to the owners of the mill and partly on that of the railroad corporation, for the purpose of delivering a load of wheat. The driver left the team so standing unattended and it escaped upon the railroad tracks and the horses were killed. The railroad corporation permitted its land to be used as a way for the owner of the mill and his patrons to go to and from it, of which privilege the plaintiffs were in the act of availing themselves when their team was killed. To hold that the fencing statute was designed to prevent the owners of a team from voluntarily driving it onto the lands of the corporation, or being so on, to compel the corporation to indemnify its owners for the loss occasioned by the negligence of their agent in permitting the team to escape onto the track in front of a moving train, is to give the statute an effect not contemplated by its authors and not thought of, I think, heretofore. Many places adjacent to railroad stations, which are not highways nor strictly station grounds, are necessarily left unfenced for the accommodation of the adjoining owners and the public; and to hold that, in all such cases, a railroad is absolutely liable for an injury sustained by teams which enter on the track while in the care of their drivers, without regard to the question of the negligence of their owners or drivers, is to impose an unreasonable liability on the roads, and one altogether foreign to the purposes of the statute. *Page 576 The court erred in refusing to hold that the railroad was not required to fence its road at this point within section 8 of chapter 282 of the Laws of 1854, which provides: "But no railroad corporation shall be required to fence the sides of its roads except when such fence is necessary to protect horses, cattle, sheep and hogs from going onto the track of the railroad from the lands adjoining the same." I am unable to concur in the reasoning that the escape of this team onto the railroad land proves that a fence was necessary to protect horses from getting on the track from lands adjoining the same. If this conclusion follows from the facts in this case it is difficult to see why the injury of a team by a collision with a moving train at points other than at highway or farm crossings will not always amount to proof that a fence was required by the statute. The judgment should be reversed and a new trial granted, with costs to abide the event.