Brace v. . New York Central Railroad Company

By the statute, the defendant was required to "construct and maintain cattle guards at all road crossings, suitable and sufficient to prevent cattle and animals from getting on to the railroad;" and it is declared, that until such cattle guards shall be duly made, the corporation and its agents shall be liable for all damages which shall be done by their agents or engineers, to cattle, horses or other animals thereon." (Sess. Laws 1850, p. 233, § 44.) *Page 271 The position of the defendant's counsel is, that the "Town Line Road" was a street, and that the statute has no application to a street, in a city or village. No statutory exemption is referred to, but this is the construction sought to be maintained of the words, "all road crossings." The Town Line road, so called, was a highway, and had existed as such, in the language of one of the witnesses, as long as he could remember. It did not cease to be a highway when a small village grew up along its sides, nor when it crossed the canal, and extended on to other streets, opened for the use of the villagers. It was a highway, and, within the meaning of the statute, a road. The terms, highway and road, are constantly used as synomymous. They are so used in the chapter of the Revised Statutes, "Of Highways," c. But, if we should call the highway, at the place of the crossing in question, a street, the liability of the defendant would not be changed. It would still be a road, within the meaning of the statute. Strictly, a street is a paved way or road, but the term is used for any way or road in a city or village. It is defined by Bouvier (Law Dict.), "a road in a village or city;' and see Webster's Dictionary. Thus, a highway is a road, and a street is a road; and as the statute requires railroad corporations to construct and maintain cattle guards at all road crossings, it includes streets in villages and cities. The defendant in this case did construct cattle guards at this crossing, on each side of the road, and the one upon the west side still remained; but, as the inhabitants residing upon the Town Line road, were in the habit of passing from the road on to the railroad, and from thence along the railroad to the depot, some twenty-five rods, and from the depot back to the road, upon the same route, they complained of the cattle guard as a nuisance, and the defendant caused it to be filled up. It is not necessary to say, that such cattle guard was not a nuisance. The law expressly required its construction and maintenance. It may be well to call attention to the statute, declaring that "it shall not be lawful for any person, other than those connected with or employed upon the railroad, to walk along the track or *Page 272 tracks of any railroad, except where the same shall be laid along public roads or streets." (§ 44.) The inhabitants had no right to walk along the track, and it was unlawful in them to do so. The defendant's counsel refer to Vandekar v. The Rensselaerand Saratoga Railroad Company (13 Barb., 390), and Parker v.The Same (16 Barb., 315). In the former case, there was no "road crossing," and the question we are considering was not involved. The opinion was expressed, however, that cattle guards, in the streets of a city or village, would be nuisances; in which opinion I fully concur, understanding that the cattle guard is constructed across a street which crosses another street in which the railroad is constructed. Such cattle guard would arrest all travel along the street across which it should be constructed. This would be very different from the construction of a cattle guard across the railroad and along the outer margin of the street, the railroad not being constructed along, in a street. The opinion was also expressed, that the statute makes an obvious distinction between roads and street, referring to the sections of the statute relating to the ringing of bells and putting up boards to give warning, in which both words are used. In the other case, the question was fairly up, as the railroad was not constructed along or upon a street where the cow was killed, but it crossed Washington street, in the village of Saratoga Springs, and there were no cattle guards at this crossing. It was held, that the general railroad act, requiring railroad companies to construct cattle guards at all railroad crossings, did not apply to streets in cities and villages, and that it was so decided inVandekar v. The Rensselaer and Saratoga Railroad Company,supra. In support of this position, sections 39 and 40 of the general railroad act of 1850 are referred to, as indicating the intention of the legislature to make a distinction between the words, streets and roads; and that it was not its intention to include streets, by the words, "all road crossings," as used in section 44. Section 39 relates to the ringing of a bell when the railroad shall cross any traveled public road or street, or the *Page 273 sounding of a steam whistle at the place where the railroad shall cross any such road or street, except in cities; and section 40 relates to the placing of boards across each traveled public road or street, where the same is crossed by the railroad, having upon them the words, "Railroad crossing; look out for the cars." This section is not to apply to streets in cities and villages, unless the corporation shall be required to put up such boards, by the officers having charge of such streets. In my opinion, no inference can be drawn from the word street, in those sections, that the legislature intended, by the use of the words, all road crossings, in section 44, to make a distinction between a road and a street, and to exclude the latter from the requirement of the 44th section, touching cattle guards. As we have seen, a street is a road in a village or city; and a road, in a city or village, is usually and properly called a street; though in the act of 1847 (ch. 426), "to provide for the incorporation of villages," the term road is generally used, instead of street (§§ 45, 57, subd. 23; § 58, subd. 3 and 5, c.); and the words, street and highway, are also used, meaning the same thing. If we consider the evil and danger against which the legislature intended to provide, I think we shall not hesitate to so construe the act as to include the crossing of roads or streets in villages. The object of the legislature, in the provisions relating to fences and cattle guards, was to exclude from the railroad all animals. Experience had shown, that an animal upon the track is in great danger of being killed or maimed; and further, as to most animals, they greatly endanger, not only the property of the railroad company, but the limbs and lives of passengers. (See opinion of DENIO, J., in Corwin v. The N.Y. and Erie R.R.Co., 3 Kern., 53.) The purpose of cattle guards at road crossings is to prevent cattle and animals getting on the railroad, and they are quite as important in villages as they are in the open country, and, indeed, more so; for I apprehend that cattle and animals are more liable to be turned from the road or street, in a village, *Page 274 on the railroad, if there is no obstruction, than in the open country, where they are less liable to be turned aside. These cattle guards are not in the street, or ought not to be. They do not, in the least, encroach upon or obstruct the highway or road. They are constructed at the sides of the highway, across the railroad bed, the rails spanning them, thus providing a way for the cars over them, and there are ditches or excavations of sufficient depth or width to prevent cattle or animals from getting on the railroad. One of the positions of the counsel for the plaintiff, is that Gasport was not a village, and that the Town Line road could, therefore, in no sense, be styled a street. It is true that Gasport was not incorporated, nor did it contain the requisite number of inhabitants (300) to authorize it to become incorporated, under the general act to provide for the incorporation of villages. But I prefer to put our decision upon a broader reading of the statute, as already indicated. The judgment should be affirmed.