Citation Numbers: 31 N.Y.S. 241, 82 Hun 308, 89 N.Y. Sup. Ct. 308, 63 N.Y. St. Rep. 571
Judges: Putnam
Filed Date: 12/4/1894
Status: Precedential
Modified Date: 1/13/2023
Plaintiff recovered a judgment for the sum of $200, the value of a horse which strayed upon defendant’s tracks and was killed by defendant’s cars. The complaint alleged negligence on the part of defendant—First, in not providing and maintaining proper means of fastening the gate at plaintiff’s farm crossing, whereby the gate became open, and the plaintiff’s horses strayed on the railroad tracks, and the animal in question was killed by a train of cars running on defendant’s road; second, in the reckless and careless manner in which defendant’s servants ran said train at the time the horse was killed. The trial judge held that there was not enough evidence to show negligence on the part of defendant in neglecting to provide and maintain fastening or means to secure the gate in question to submit to the jury; but did submit the question as to the negligence of defendant’s servants in managing the train by which plaintiff’s horse was killed. Hence, the only question to be considered is, did the evidence establish such negligence or misconduct on the part of defendant’s engineer in charge of the engine that ran over plaintiff’s horse as to render defendant liable for its value? As, under the ruling of the court below, the evidence did not show any negligence on the part of the defendant in maintaining the fastenings of the gate at the place where the horse came on the track, and as it was not shown that the said gate became open on account of any fault on the part of the defendant or its servants, the horse to recover the value of which the action was brought must be deemed as trespassing upon defendant’s land at the time he was killed. Munger v. Railroad Co., 4 N. Y. 349, 5 Denio, 255; Boyle v. Railroad Co., 39 Hun, 171-173; Id., 115 N. Y. 636, 21 N. E. 724. Hence, under the above authorities, the defendant was not liable for the injury to the horse unless the evidence established the fact that the animal was killed by a reckless or willful act of defendant’s servants. A careful examination of the evidence shows that it fails to establish such a state of facts as to render the defendant liable under doctrines established by above authorities. At the place where the accident occurred there was a down grade. There was evidence showing that the train was moving rapidly, but not that it moved more rapidly than such trains usually do at that place. It appears