Clark v. Syracuse & Utica Railroad , 11 Barb. 112 ( 1851 )

By the Court,

Allen, J.

Most of the questions which are presented in this cause, were considered and settled in The Tonawanda Railroad Co. v. Munger, (5 Den. 255,) and so far as the principles of that case are involved in this, we shall content ourselves by referring to and applying them to the facts. It would be a work of supererogation to add any thing to the reasoning of the able judge who pronounced the decision of the court, or to add to the list of authorities by which his conclusions are fortified. One of the doctrines laid down in that case, and which was before well established, is that an action for negligence can not be sustained, if the wrongful act of the plaintiff co-operated with the misconduct of the defendant to produce the damages sustained, and that this is so, whether the plaintiff’s act be negligent or willful. The same rule is expressed in other cases, in language slightly different. In Spencer v. Utica and Schenectady Railroad Co. (5 Barb. S. C. R. 338,) it is said, “ It is necessary for the plaintiff to establish the proposition that he himself was without fault.” In Brown v. Maxwell, (6 Hill, 592,) it is said, “ A plaintiff suing for negligence must himself be without fault.” Was the plaintiff without fault, then, in suffering his cow which was killed in 1845, to be at large in the highway and upon the railroad track at the time of the accident ? It was the usual time for the passenger train of cars to pass that point. It is conceded that the cow did not escape on to the road from the land of the plaintiff through any defect of fences which it was the duty of the defendants to repair. The evidence shows clearly that the bars to the field in which she was pastured were opened by some one, and the cow suffered to find her way 'alone to the plaintiff's house, which was at some distance on the opposite side of the railroad track. If the cow was thus suffered to go at large and alone along the highway and across the track, by the act of the plaintiff, or his servants, he is responsible for the consequences if such act contributed to the injury. And if the opening of the bars was the wrongful act of a stz'anger, still the defendants are not responsible. The wrongdoer must answer for it. It was an act which the defendants had no reason to expect, and were not called upon to guard against. In Brownell v. Flagler, (5 Hill, 282,) Bronson, J. says that it would be negligence to suffer a cow and a lamb to escape into a highway, and that if the lamb had been killed by a passing carriage, without any intentional fault in the driver, the owner would have had to bear the loss. And if it be negligent to suffer cattle to run at laz’ge on an ordinary highway, exposed to no danger except from the passing carriages, a fortiori is it an act of negligence to suffer cattle to be at large in a highway at railroad crossings. The defendants have the same right to occupy their roadway at the crossing for the passage of their cars, that a traveler has to use the highway for his purposes. It is true the plaintiff had the l’ight to use the highway for the passage of his cows to and from the pasture ; hut he must use ordinary and proper care and diligence in driving them, having reference to the situation of the road and the manner in which it is used. What would he proper care in one case might be gross negligence in another. At one time of day when no cars were passing, cattle might with impunity be suffered to pass and repass this railroad crossing without a driver. But not so at the hour at which this cow was killed. It is very clear that if the cows upon this occasion had been properly attended and driven, the accident could not have happened. And it is equally clear that the accident could not have been prevented by the defendants, at least not without extreme care, and that degree of diligence which they were not required to exercise. Ordinary care on the part of the plaintiff would have prevented the accident, and the loss must fall upon him. (Hartfield v. Roper, 21 Wend. R. 615.) The jury evidently rendered a verdict for the value of the three cows, as they estimated such value, but what amount they allowed for each can not be known, and as they erred in allowing to the plaintiff the value of the cow killed in 1845, the judgment must be reversed. But we are of the opinion that the plaintiff also failed to make out a cause of action in respect to the two cows killed in 1847. And without elaborating upon this branch of the case, the following reasons may be stated as among those which would upon the evidence preclude a recovery in this action.

I. The cows were trespassers upon the road of the defendants, and therefore the plaintiff can not maintain an action for their death, even if it was occasioned by the gross negligence of the defendants. (The Tonawanda Railroad Company v. Munger, 5 Denio, 255.)

II. There is no allegation in the pleadings to authorize evidence that they escaped on to the road through a defect of fences which the defendants were bound to repair. The reply alledges merely that the plaintiff was not bound to fence along the railroad about or near where the injury was committed. There is no allegation that the defendants were bound to fence at that point; neither is it averred from what place, in what manner, or how the cattle came upon the road.

[Oswego General Term, May 5, 1851.

Pratt, Gridley, Allen and Hubbard, Justices.]

III. There is no evidence to show in what manner the cows came upon the road.

IV. If the cattle escaped from the 12 acre piece, then the plaintiff was guilty of negligence in placing them there ; it being well known to him that there was no fence, and nothing to prevent their going on to the road. Even if it be conceded that the defendants should have made the fence, it can not, in this case, vary the result. The fence was not made. The statutory obligation resting upon the defendants might have been enforced, but it by no means authorized the plaintiff to turn his cattle upon the railroad track to the jeopardy of their lives and the lives of those passing over the road of the company. There are other difficulties in the plaintiff’s case; which we will not refer to. Judgment of the county court and of the justice reversed.