Purdy v. . New York New Haven R.R. Co.

Earl, C. By chapter 195 of the Laws of 1846 the defend,-ants were authorized to construct their road through the *355 county of Westchester, and were empowered, for that purpose, to take land by purchase, or by the hostile proceedings provided in the act; they were required to erect and maintain fences upon the sides of their road, and the legislature reserved the right, at any time, to alter or repeal the act. Under this act alone, the defendants would probably not have been liable for killing the cattle, as they were not lawfully upon the adjoining close, and were trespassing upon their road. (The Tonawanda R. R. Co. v. Munger, 5 Denio, 255; S. C., 4 Comst., 349.) But, by chapter 282 of the Laws of 1854, the general railroad act was amended. Section 8 of that chapter provides that “ every railroad corporation whose line is open for use, etc., shall erect and thereafter maintain fences on the sides -of their roads, etc. And so long as such fences 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 cattle,” etc. This section was enacted from public considerations. Its purpose was to protect the traveling public, as well as farmers along the lines of railroads, and it should receive such a construction as to afford the protection designed. So far as this railroad was within this State it was subject to the control of our legisture. It was just as important that this road should be fenced as that other roads owned by domestic corporations should be. The policy of the statute extends to all railroads within the State, and they are plainly comprehended within its language. The section applies to all roads open or to be opened for use. Many of the sections of the general railroad act apply only to corporations formed under that act. Other sections apply to all railroads within this State.' If I am right in these views, and the section above cited applies to this road, then it follows, upon repeated adjudications, that the defendant is liable for killing the cattle, although they were trespassing upon its road. (Tracy v. The Troy and Boston R. R. Co., 38 N. Y., 433; Bradley v. The Buffalo, N. Y. and E. R. R. Co., 34 id., 427; Corwin v. The N. Y. *356 and E. R. R. Co., 13 id., 42; Shepard v. The Buffalo, N. Y. and E. R. R. Co., 35 id., 641.) The judgment must therefore be affirmed, with costs. All concur. Judgment affirmed.