Brown v. Milwaukee & Prairie du Chien Railway Co.

Dixon, C. J. The defendant’s counsel seem to misapprehend the decision in Hance v. The Cayuga & Susquehanna Railroad Company, 26 N. Y., 428. The court did not decide that the absolute liability under the statute ceased when the fences [43] Rad once been erected. The 1ST. Y. statute, like our own, provides that when suck fences shall be duly made and maintained, tbe xaib’oad company, or other party having control of the road, shall not be liable for any such damages, unless wilfully or negligently done. Laws of 1860, chap. 268. The turning point in that case was, not that the company had neglected to build and maintain sufficient fences and cattle guards, for it appears that it had done both, but that it had been guilty of negligence in another respect not within the statute ; that is, in not removing the snow from underneath the cattle guard. In such case the negligence of the plaintiff may very properly have been taken into account in determining whether he was entitled to recover, but it does not show that the same rule is to prevail when the injury arises through a defect of fences which have once been erected. ■. The statutory liability is abso - lute, and continues unless the fences are maintained as well as erected. This disposes of the second instruction asked by the defendant and refused by the court, the court having already correctly instructed the jury as to the duty of the company in keeping up its fences, and that being the only question at issue. There was also another reason for refusing the instruction. There was no sufficient evidence that the white horse was breachy. It did not appear that he was accustomed to or ever had jumped or pushed down a lawful fence. Mr. Oleson’s fence was only “ about four feet high.” An animal that would jump or push down such a fence might never attempt the same thing with one of the requisite statutory height and strength. The first instruction asked by the defendant and refused in form, though given with a slight modification by the court, is not the subject of complaint here. It seems to have been as favorable to the defendant as the circumstances of the case required. The testimony of the witness Oleson was admissible for the [44] purpose of showing the negligence of the company in not repairing tbe fence — that its defective condition was or ought to have been known to the agents and employees of the company. If the fence should be suddenly destroyed by some accident against which it is impossible for the company to provide, it may be that it would not be subject to the absolute liability of the statute, if immediate stejss were taken to rebuild. The jury were instructed that the company, in keeping up the fence, were only bound by that ordinary care and diligence observed between other adjoining land owners. At all events the jury could not have been misled by the testimony, as'they must have understood that it was the defective condition of the fence at the time of the injury for which the company were responsible. Another objection is, that the verdict is unsupported by evidence. We cannot agree with the counsel in this. There clearly was some evidence to sustain the verdict. By the Court. — Judgment affirmed.^