Tracy v. Troy & Boston Railroad , 1867 N.Y. App. Div. LEXIS 250 ( 1867 )

By the Court, Hogeboom, J.

The decision of this case, probably, turns upon the true construction to be given to those sections of the act to authorize the formation of railroad corporations, and to regulate the same, passed April 2, 1850, (Laws of 1850, chap. 140, § 44,) and the act to amend the same, passed April 15, 1854, (Laws of 1854, chap. 282, § 8,) by which “Every railroad corporation whose line is open for use shall erect and maintain fences and crossings on the sides of their roads, of the height and strength of division fences, and in default thereof shall be liable for damages done by their agents or engines, to any cattle, horses, sheep or hogs thereon.” The plaintiff's cow was killed by an engine and train of the defendants, upon the track of the railroad of the Troy Union Railroad Company, which was a railroad in the city of Troy not owning or running any engine or other rolling stock, and in which the defendants, in common with the Rensselaer and Saratoga Railroad Company, the Hew York Central Railroad Company and the Hudson River Railroad Company, were stockholders, and had a right to use the railroad tracks of the Troy Union Railroad Company, said tracks having been in fact built by and at the mutual expense of said railroad companies.

The action does not appear to have been tried upon the theory of proving actual negligence on the part of the defendants in the running of their cars, nor to have been determined in the county court upon the theory of actual negligence on the part of the plaintiff, contributing to the injury; but to have been tried upon the question whether the road in question was, for the purposes of this case, the road of the defendants; the plaintiff maintaining that it was, and the defendants that it was not. If it was, then the defendants were liable without proof of actual negligence ; inasmuch as no fences or crossings had ever been erected or maintained. (2 Edm. Stat. 643, § 8. Corwin v. The New York and Erie Railroad Co., 13 N. Y. Rep. 42.)

I think the defendants are liable.

1. The road is substantially their road. They contributed to its construction, have a right to use it, and did on this occasion use it, in virtue of the rights conferred by the act organizing the Troy Union Railroad Company, (Laws of 1851, chap. 255, p. 78, § 79,) were members, and stockholders of the latter company, and.did the wrongful act complained of.

[Albany General Term, May 6, 1867.

2.. The Troy Union Railroad Company never had any engines or rolling stock, and it is doubtful whether they could be made liable for this injury, on account of never having done the injury; unless it should be construed to be by relation. If they are to" be liable,- then no other company is liable, except the defendants, because no other participated in the act complained of.

3. The plaintiff is therefore remediless if he cannot have relief in this form, and the obligation to build and maintain fences and crossings, so far as the track of the Troy Union Railroad Company is concerned, can never be practically enforced. The defendants are within the spirit and equity of the act, and, as I think, subject to its provisions. - I am of opinion that the judgment of the county court should be reversed, and a new trial granted therein, with costs to abide the event, ^(a)

Peckhmn, Ingalls and Hogeboom, Justices.]

(a) Judgment unanimously affirmed by the Court of Appeals.