Graham v. President of the Delaware & Hudson Canal Co. , 12 N.Y. St. Rep. 390 ( 1887 )

Landon, J.:

The statute (chap. 282, § 8, Laws 1854) provides that “.every railroad corporation * * * shall * * * erect, and thereafter maintain, fences on the sides of their roads, of the height and strength of a division fence as required by law.” The plaintiffs owned and used as a pasture the lot of land adjoining the defendant’s railroad. TJiere.was a deep rock cut, through'which the railroad was laid along a portion of this pasture lot. The defendant did not erect or maintain a fence on the side of its road where this cut was. The plaintiffs’ horse, being in the pasture lot, fell down into this cut and was killed by the fall. The defendant was guilty of negligence in not performing its statutory duty. (Corwin v. New York and Erie R. R. Co., 13 N. Y., 53.) This duty it owed both to the plaintiffs and to the public. To the public in the interest of the lives and property committed to its care ; to the plaintiffs in order to protect them in the enjoyment of their adjoining land and their horses and cattle thereon. The plaintiffs, in a proper case, could invoke the aid of equity to enforce its performance {Jones v. Seligman, 81 N. Y., 190), or obtain mandamus {People ex rel. Garbutt v. R. & & L. R. R. Co., 76 id., 294) or maintain their action for damages if their freehold was rendered less valuable, or they were deprived of its use, because of defendant’s neglect to maintain the fences. {Thomas v. Utica and B. R. R. R. Co., 97 N. Y., 245 ; Leggett v. Rome, W. and O. R. R. Co., 41 Hun, 80.) These various remedies imply that the plaintiffs, as adjoining owners, are entitled to full protection to both their land and cattle from any injury resulting from neglect to maintain the fences.

The form of the action may not be material if the facts constituting it are, as in this case, plainly stated. The form here adopted charges the defendant with negligence. The last two cases above cited assume that there is a contract obligation upon the part of tbe defendant to perform its statutory duty. But the duty enjoined upon the defendant being for public as well as private protection, there is also, upon familiar principles, an obligation independent of contract, having its foundation in the policy of the law, which for public ends, no less than for private advantage, requires its observance and imputes negligence because of its non-observance. This negligence was the direct cause of -the death of the plaintiffs’ horse.

The jury found that the plaintiffs were not guilty of contributory negligence. Within Shepard v. Buffalo New York and Erie Railroad Company (35 N. Y., 641), it would be difficult to impute contributory negligence in a case like this. Thus, the plaintiffs’ right-to recover was established-. But the defendant relies upon the further provision of the statute above cited. It further provides: “ Sodong -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 any cattle, horses., * * * thereon.” The-defendant insists that it is only liable for damages'done by its'agents or engines, and cites Knight v. New York, Lake Erie and Western Railroad Company (99 N. Y., 25). In that case the plaintiff Was not the owner or occupier of the premises-adjoining the railroad, and, therefore; the railroad was 'guilty of no negligence with respect to the fences between its -road and his land-; and -since the plaintiff’s colt passed upon the railroad througli ;a defective fence -between the railroad and some other owner, the -plaintiff was entirely without right to relief except such as the statute provided-; and-as it provided none for his case, he could not recover. 'The>defendant-also cites cases to the effect that where the remedy-is'a-statutory one, and anew right given, and specific relief prescribed for a violation of such right, the remedy is confined to that which 'the -statute -gives. (Jessup v. Carnegie, 80 N. Y., 441, 456; Dudley v. Mahew, 3 id., 9, 15; Smith v. Lockwood, 13 Barb., 209 ; Renwick v. Morris, 7 Hill, 575.) Here no new remedy is given'; the statute enjoins a new duty upon the railroad company, but the right which corresponds to that duty is left to be enforced by old remedies. Crandall v. Eldridge, decided by us at this term of the court,^* differs from this case only in the fact that it arose between the owners of adjoining farms and is governed by the statute relating to division fences. There the defendant neglected to maintain his part of the division fence. The plaintiffs’ colt passed from the plaintiff’s land over this defective fence, fell into a natural morass upon the defendant’s lot and was drowned. The statute respecting division fences limits the recovery to injury done to the land aqd crops. But for the statute the plaintiff’s colt would have been trespassing upon defendant’s lot. "We held that as the statute respecting division fences confers no rights and imposes no duties except as between the owners of' adjoining lands, the negligence with respect to their particular division fences does not concern the public, and hence gives no rights springing from a violation of a public duty, and, therefore, the plaintiff was confined to the statutory relief and could not recover. But we pointed out that when the new duty enjoined by the statute is for the benefit of the public as well as for persons holding certain specified relations to the party upon whom the duty is enjoined, the neglect of that duty gives the party injured all the relief due to him in either or both relations. The cases are numerous which hold that the violation of a public statute is legal negligence, and the violation of a municipal ordinance is evidence of negligence. (Van Norden v. Robinson, 45 Hun, 567, and cases there cited.)

It was__at one time contended that the only liability incurred by violating an ordinance was the penalty prescribed in it. {Brown v. Buffalo and S. L. R. R. Co., 22 N. Y., 191.) But that doctrine did not long prevail. It was soon perceived that every person who violates an express statute is a wróng-doer, and as such is, ex necessitate, negligent; and if he has done the wrong with respect to an innocent person, the latter has his remedy for full indemnity. (Jetter v. N. Y. and H. R. R. Co., .2 Keyes, 154, 162.) Nor is it clear that the statute casts any new duty or liability upon the defendant. The legislature conferred the right to construct and operate railroads, and therewith, and as a part of the legislation conferring the rights, it enacted the statute in question to impose a duty regulating the right. The right and duty go together, and when the right is obtained the duty is imposed. The act is not a mere modification of the law respecting division fences. (Corwin v. N. Y. and Erie R. R. Co., 13 N. Y. 42.)

Judgment affirmed, with costs.

Potter and Parker, JJ., concurred.

- Judgment affirmed, with costs.

* Reported, post, p. 411.