Peckham, J.
Upon the facts, was there error in nonsuiting the plaintiff and refusing to allow the case to go to the jury?
It is insisted by the plaintiff that that part of the old highway running east and west, which was exclusively occupied by the defendant as its road bed, and .whereon this injury occurred, had ceased, by the acts of the defendant, to be a public road, and that defendant was, therefore, guilty of negligence in not having fenced it and put cattle guards at each end, as would have been required by law-under such facts.
It appeared by the proof that the east and west road had been entirely changed, in fact, by the defendant; had been moved south of its former track; and was, and had been since,' exclusively- traveled on its new south track. Its old bed, occupied by defendant for the bed of its road, had been raised three feet and some inches, and the proof showed it had not in fact been traveled on, and could not be, easily.. The right
of the defendant to construct its road along said highway was not denied, but the “ company shall restore the highway to its former state, or to such state as not unnecessarily to have impaired its former usefulness.” (2. R. S., 5th ed., 681, sub. 5 of § 34.) The defendant had dug a ditch in the old road bed on the north of defendant’s track, and had otherwise rendered it impassable there.
If the defendant had the right thus to change the old road; if it had the right to give it a new track, to alter or change the road, and to deprive the public of the use of the old track, I incline to think the company is' bound to treat the old track thus abandoned as discontinued, and to fence and guard it accordingly. The alteration of a public road by competent authority would seem to imply, in terms, the abandonment of the part left — its discontinuance; otherwise, ( it should not be called an alteration, but an addition.
In
Commonwealth
v.
Cambridge
(7 Mass., 158), Chief Justice Parsons says, “that the turning of part of the course, of an old road to another direction, is, in law, a discontinuance of that part of the old road, the course of which was turned.”
In
Commonwealth
v.
Westborough
(3 Mass., 406), it was held, that an alteration is a discontinuance of the part altered.
It is, perhaps, claimed that this was a widening of the east and west road, and not an alteration; that it was made under the authority of section 27 of the railroad act. (2 R. S., 5th ed., 678.) It is not clear that that provision would make this other than an alteration; still, as the decision is not necessary in the disposition of this case, no opinion in regard to it is expressed.
But of what possible benefit — for what useful purpose to the defendant or to the public, should this piece of ground be regarded as a public highway, when it is not and cannot be so used
%
Its only consequence is to permit cattle to stray thereon, to the great peril of the defendant’s passengers, as well as danger to its property.
The result to the defendant is the same in this case,
whether the old track was discontinued by the alteration oí not. If it were discontinued, then the road should have constructed cattle guards at each point on defendant’s track of the old road abandoned, where'they came in contact- with the public road. It should have constructed cattle guards at these road crossings. (2 R. S., 5th ed., 690, § 56.) If this could not be legally done, because of its being a public road in law, though not in fact, then the defendant must see to it that all - other practicable measures were-adopted to secure the safety of its passengers over so dangerous a point — to keep a watchman, or to go slower there, if necessary. - The same degree of care must be exerted by the road for the safety of its passengers there, that -is required in reference to its cars and to the materials of which they are constructed. The care and skill there required are well illustrated in this court in
Hagerman
v.
Western Railroad Company
(3 Kern., 9) A passenger was injured by the breaking of an axletree from án internal defect, which no vigilance or skill could have discovered by an external examination. It was proved that the company pm-chased the axletree from manufacturers of the first class for skill and care. The court held that the company was liable, if the defect could have been discovered (as it was proved it could), in the course of its manufacture by any process or test known to the skillful in such business.
It is no answer to say that the statute allowed the defendant to run without constructing any fence or cattle guards, or having a watchman to keep off cattle from the road in such case, and if the road comply with the law it cannot be liable. -
The statute has imperatively required certain things to be donebut such requirements are by no means the measure of the defendant’s care or conduct in the transportation of passengers. These requirements the road must comply with; but it cannot, therefore, neglect other necessary and proper precautions. The defendant here was bound to exercise all the care and skill which human prudence and foresight could suggest. This language is broad and comprehensive, but it is the language of the law.
(Bowen
v.
The New York Central Railroad
Company, 18 N. Y., 408.) This
care extends to all measures necessary and proper to secure the safety of the train and passengers, as well as to the management of the train itself.
The statute makes no provision that the cars of a railroad shall be constructed in any peculiar manner. Yet the courts require them to be manufactured in the safest possible mode.
Hot being controlled by statute, the defendant might plausibly say, that if it purchased its axletrees of first class manufacturers, and purchased the best that were made by them, it had discharged its whole duty, and could be charged with no neglect, though injury and damage ensued from a defect in them.
This court has properly held otherwise, that the defendant must see to it that the axletree is not only sound in appearance, but sound in fact, if any skill applied in the course .of its manufacture could detect the defect.
The statute authorizes the defendant to cross roads above or below the surface of wagon roads. It simply gives .to defendant the power; it does not impose the obligation to, do so. The defendant may keep a watchman where it crosses .such roads on the same surface; the statute does not require it. The defendant may run slower at such a point; the statute does not direct it. But the defendant must neglect all these precautions at its peril. Either one will give safety to its passengers. If it will neglect and disregard; all, it does. so at the peril of being answerable for .the consequences — for all damages to its passengers caused by such neglect.
A clearer illustration of defendant’s duty cannot well be presented than this case affords. It appeal's that cattle had been in the habit of pasturing upon the track at this point.The cars, on this occasion, were on a straight plain for some two miles directly before they reached this place.
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Peckham, J.
Upon the facts, was there error in nonsuiting the plaintiff and refusing to allow the case to go to the jury?
It is insisted by the plaintiff that that part of the old highway running east and west, which was exclusively occupied by the defendant as its road bed, and .whereon this injury occurred, had ceased, by the acts of the defendant, to be a public road, and that defendant was, therefore, guilty of negligence in not having fenced it and put cattle guards at each end, as would have been required by law-under such facts.
It appeared by the proof that the east and west road had been entirely changed, in fact, by the defendant; had been moved south of its former track; and was, and had been since,' exclusively- traveled on its new south track. Its old bed, occupied by defendant for the bed of its road, had been raised three feet and some inches, and the proof showed it had not in fact been traveled on, and could not be, easily.. The right
of the defendant to construct its road along said highway was not denied, but the “ company shall restore the highway to its former state, or to such state as not unnecessarily to have impaired its former usefulness.” (2. R. S., 5th ed., 681, sub. 5 of § 34.) The defendant had dug a ditch in the old road bed on the north of defendant’s track, and had otherwise rendered it impassable there.
If the defendant had the right thus to change the old road; if it had the right to give it a new track, to alter or change the road, and to deprive the public of the use of the old track, I incline to think the company is' bound to treat the old track thus abandoned as discontinued, and to fence and guard it accordingly. The alteration of a public road by competent authority would seem to imply, in terms, the abandonment of the part left — its discontinuance; otherwise, ( it should not be called an alteration, but an addition.
In
Commonwealth
v.
Cambridge
(7 Mass., 158), Chief Justice Parsons says, “that the turning of part of the course, of an old road to another direction, is, in law, a discontinuance of that part of the old road, the course of which was turned.”
In
Commonwealth
v.
Westborough
(3 Mass., 406), it was held, that an alteration is a discontinuance of the part altered.
It is, perhaps, claimed that this was a widening of the east and west road, and not an alteration; that it was made under the authority of section 27 of the railroad act. (2 R. S., 5th ed., 678.) It is not clear that that provision would make this other than an alteration; still, as the decision is not necessary in the disposition of this case, no opinion in regard to it is expressed.
But of what possible benefit — for what useful purpose to the defendant or to the public, should this piece of ground be regarded as a public highway, when it is not and cannot be so used
%
Its only consequence is to permit cattle to stray thereon, to the great peril of the defendant’s passengers, as well as danger to its property.
The result to the defendant is the same in this case,
whether the old track was discontinued by the alteration oí not. If it were discontinued, then the road should have constructed cattle guards at each point on defendant’s track of the old road abandoned, where'they came in contact- with the public road. It should have constructed cattle guards at these road crossings. (2 R. S., 5th ed., 690, § 56.) If this could not be legally done, because of its being a public road in law, though not in fact, then the defendant must see to it that all - other practicable measures were-adopted to secure the safety of its passengers over so dangerous a point — to keep a watchman, or to go slower there, if necessary. - The same degree of care must be exerted by the road for the safety of its passengers there, that -is required in reference to its cars and to the materials of which they are constructed. The care and skill there required are well illustrated in this court in
Hagerman
v.
Western Railroad Company
(3 Kern., 9) A passenger was injured by the breaking of an axletree from án internal defect, which no vigilance or skill could have discovered by an external examination. It was proved that the company pm-chased the axletree from manufacturers of the first class for skill and care. The court held that the company was liable, if the defect could have been discovered (as it was proved it could), in the course of its manufacture by any process or test known to the skillful in such business.
It is no answer to say that the statute allowed the defendant to run without constructing any fence or cattle guards, or having a watchman to keep off cattle from the road in such case, and if the road comply with the law it cannot be liable. -
The statute has imperatively required certain things to be donebut such requirements are by no means the measure of the defendant’s care or conduct in the transportation of passengers. These requirements the road must comply with; but it cannot, therefore, neglect other necessary and proper precautions. The defendant here was bound to exercise all the care and skill which human prudence and foresight could suggest. This language is broad and comprehensive, but it is the language of the law.
(Bowen
v.
The New York Central Railroad
Company, 18 N. Y., 408.) This
care extends to all measures necessary and proper to secure the safety of the train and passengers, as well as to the management of the train itself.
The statute makes no provision that the cars of a railroad shall be constructed in any peculiar manner. Yet the courts require them to be manufactured in the safest possible mode.
Hot being controlled by statute, the defendant might plausibly say, that if it purchased its axletrees of first class manufacturers, and purchased the best that were made by them, it had discharged its whole duty, and could be charged with no neglect, though injury and damage ensued from a defect in them.
This court has properly held otherwise, that the defendant must see to it that the axletree is not only sound in appearance, but sound in fact, if any skill applied in the course .of its manufacture could detect the defect.
The statute authorizes the defendant to cross roads above or below the surface of wagon roads. It simply gives .to defendant the power; it does not impose the obligation to, do so. The defendant may keep a watchman where it crosses .such roads on the same surface; the statute does not require it. The defendant may run slower at such a point; the statute does not direct it. But the defendant must neglect all these precautions at its peril. Either one will give safety to its passengers. If it will neglect and disregard; all, it does. so at the peril of being answerable for .the consequences — for all damages to its passengers caused by such neglect.
A clearer illustration of defendant’s duty cannot well be presented than this case affords. It appeal's that cattle had been in the habit of pasturing upon the track at this point.The cars, on this occasion, were on a straight plain for some two miles directly before they reached this place. It was in the open day; the cow, of course, plainly visible to those upon the engine; yet the train rushes with undiininished. speed until the injury occurs. The engineer, of course-, saw or might have seen her. The result to the defendant is. bhe same in either case. If her being there was a surprise, to
him, he should have seen her in the exertion of that extreme care he was bound to exhibit at such a place, and then the defendant would have been liable, if the accident might have been avoided “ by the most skillful and prompt use of all the means in its power.”
But he could not say it was a surprise. Cattle, it was proved, had been frequently seen there feeding. A man in defendant’s employ had been there at different times engaged in driving them off the track, until a fortnight prior to this injury.
The plaintiff offered to show that other cattle had been killed there by defendant on other occasions. The fact of their having been killed was perhaps not important; but the fact that they had been there — were accustomed to be there—was clearly pertinent. It put the defendant and its officers and agents on their guard. It bade them prepare for such perils. It gave them full notice. If, then, they rushed on with undiminished speed, they were guilty of gross carelessness. It is said the cattle were trespassers, and the road was not bound to expect that such trespasses would be repeated.
But the trespasses
were
repeated, and the defendant’s agents and employes knew it. At such an open, inviting place, they should have expected it, too, and used the proper precautions to prevent a collision. Is it any, the slightest excuse that the road is filled with trespassing cattle? Has the engineer a right to rush on to them, because they are trespassers ? The peril to the passengers is precisely the same, whether trespassers or otherwise, and their lives he must guard.
It is also urged, that, though the engineer saw this cow, he could not have known, with any certainty, that she would turn upon the track and cause this injury. The defendant’s agent knew the position of things at that point. He .passed daily. It was as clear as any proposition in Euclid, that this cow would not be quiet while this train ran within a foot of her, with its tremendous force and noise. He knew she could not go through the ties. The only other path lay across the track. But suppose he was entirely uncertain whether she
would go on. to tlie track or not, had he a right to speculate as to the result, at the peril of the lives of his passengers ? Clearly not. The result might have been the same, whether the ties had been there or not. The cow might have gone one way, and equally well she might have gone the other; and no right-minded man would have dared to run the chance of her crossing the track and imperiling the lives of his passengers. If he did, it would have been negligence—plain, clear and palpable; and injury following, the defendant would have been liable.
Enough has been said, it seems to me, to show that a proper case was made for the jury, and that the nonsuit was erroneous.
But it is insisted that, if the defendant be held responsible for such accidents, it will be compelled to keep a watchman at road crossings, and that such, an expense the defendant could not afford. The plain answer to such a position is, that ■ the law requires of defendant the exercise of the highest care that human prudence and foresight can suggest for the safety of its passengers. If such a measure be necessary, it must be adopted, or defendant must answer tlie-consequences. If this road, running through a rich and populous country, cannot afford to adopt the measures necessary to the safety of its passengers, what road can ?
But the rate of fare will not change the rule of law governing the road, either as a carrier of goods or of passengers.
The defendant might run its train very slowly at such points, and thus secure its passengers.
In some States the law requires a train, crossing another track where cars are frequently passing, to come to a stop as it approaches the other track; also to stop as it comes to a bridge where there is a draw. This is the measure of caution which some legislatures have deemed necessary and proper, in such cases, to prevent accidents.
Yet the chances of-an accident would plainly be greater, by more than five to one, at a place like this, where cattle are commonly found, than at either of those places.
Again, railroads have the power, by law, to avoid these
perils. They may generally avoid running on the same surface with a public highway as they cross it, and at comparatively trifling expense. They may go above or below- the surface, in laying their track.
.=• Less regard in this respect is here paid to the safety of passengers and of the public than in any country in Europe. Is human life of less consequence here ? It should not be so regarded. If a change be necessary, it should not be a change in the courts, to relax the rigor of the rule requiring the highest care from the defendant as well as other roads.
If higher rates be -necessary to their- proper running,- let the legislature "be less economical in the fare, and more so in the lives of its citizens.
' Wherever questions of this nature have arisen in other States, the courts have expressed views similar to the above, as to the rules that should govern railroads.
(Bowen
v.
N. Y. Central R. R. Co.,
18 N. Y., 408;
Messerno
v.
Nashville R. R.,
1 Sneed. [Tenn.], 220;
Cornwall
v.
Sullivan R. R.,
28 N. H., 161;
Streak
v.
Mil. R. R.,
7 Am. Law Reg., 722;
Sullivan
v.
Philadelphia and Reading R. R.,
30 Penn., 234.) Host- of these are quite analogous cases.
' In-the case at bar, it is not necessary to resort to any rigor-bus rules. Here was a cow directly by the track, and in a position difficult of escape except upon the track. She was in plain sight of the engineer, in open daylight. Besides, she was where he had been warned to‘expect cattle. He pays hot the slightest heed to this danger, but rushes on, in seeming entire disregard of it and of the consequences. It seems to me his conduct would have been inexcusably careless if his -train had been freighted with dry goods instead of human beings. At least, there was sufficient evidence of negligence to go. to the jury.
- The judgment should be reversed and a new trial ordered; costs to abide the event. -
Judgment accordingly.