John M. Kellogg, P. J.:
The defendant’s four-track road, -with three side tracks, runs through the plaintiff’s farm on which were kept horses [280]*280and cows. There was no fence between the track and the plaintiff’s house. The house was about seventy feet distant from the nearest rail. The ground between the house and the track was substantially level at the place in question. The plaintiff’s family consisted of himself, wife and four children. Another family in the house had seven children. Upon the day of the intestate’s death he was under observation by his family, but in some manner he slipped away from them and was killed upon the track by the Empire State Express, which was running at about sixty miles per hour. The intestate was about two years old. The defendant and its employees knew of the conditions existing at this place and, in a general way, that the house was occupied, in part, by small children. Concededly the defendant did not maintain a fence along its track, as required by section 52 of the Railroad Law. The plaintiff, in this action to recover for the death of his intestate, was nonsuited, upon the ground that the statute relates, not to persons, but only to the domestic animals mentioned in it. The trial proceeded upon the theory that the defendant failed to maintain a fence as required by statute; the defendant claimed freedom from liability because a person and not a domestic animal had been killed. The motion for a nonsuit was general in its terms and we, therefore, will consider only the question actually decided and litigated at the trial. (Bromley v. Miles, 51 App. Div. 95, 96.) No other question was raised or argued upon this appeal.
The appellant contends that the failure to maintain the fence, as required by the statute, was a violation of duty on the part of the defendant, and was some evidence of negligence, which, with the other facts shown, should have been submitted to the jury on the question of the defendant’s negligence. Section 52 of the Railroad Law requires the company to maintain fences on the sides of its road “ of height and strength sufficient to prevent cattle, horses, sheep and hogs from going upon its road from the adjacent lands. * * * So long as such fences and cattle-guards are not made, or are not in good repair, the corporation, its lessee or other person in possession of its road, shall be liable for all damages done by their agents or engines or cars to any domestic animals thereon. * * * No railroad need be fenced, when not [281]*281necessary to prevent horses, cattle, sheep and hogs from going upon its track from the adjoining lands.”
Fully to understand this statute we must remember that it was enacted to remedy, in part, a defect of the common law. The owners of horses, cows, sheep and hogs were required, at common law, to restrain them, and if such animals strayed upon the premises of another, they became trespassers, so that the owner could not recover for injury to them while so trespassing unless the injury was intentionally and willfully committed. (Knight v. New York, Lake Erie & W. R. R. Co., 99 N. Y. 25.)
The statute was not intended to legalize such trespass, but it was enacted for the benefit of the public and the occupant of the adjoining premises. The railroad company was required to build the fence. If it did not it was liable for any injuries sustained by domestic animals caused by the railroad’s agents, engines or cars. It was properly held in the Knight Case (supra), where the trespassing colt fell through a railroad bridge and was killed, that this statute gave no remedy. To a like effect is Jimerson v. Erie R. R. Co. (203 N. Y. 518). The statute expressly provides what damages should be paid by the company in case of injury to cattle, and leaves the owner to bear any other loss coming to his cattle from a violation of the statute.
In Donnegan v. Erhardt (119 N. Y. 468), because of the absence of a fence, the train collided with a horse upon the track and a brakeman was injured. The recovery was sustained, the court saying (p. 473): “ But whatever the rule would be independently of the statute, there is no reasonable doubt that it imposes the absolute duty upon a railroad company to fence its tracks. That duty, it is reasonable to suppose, was imposed not only to protect the lives of animals but also to protect human beings upon railroad trains. It is made an unqualified duty, and for a violation thereof causing injury the railroad company incurs responsibility. The sole consequence of an omission of the statutory duty is not specified, and was not intended to be specified in the statute. Responsibility for injuries to animals was specially imposed, because in most cases there would, independently of the statute, have been no such responsibility, as at common law [282]*282the owner of animals was bound to restrain them, and if they trespassed upon a railroad there was no liability for their destruction, unless it was wilfully or intentionally caused.”
The case also determines that irrespective of the statute the judgment against the defendant could stand upon the facts shown, and the facts shown were not stronger proof of negligence than in the instant case. On principle, if the accident in the Donnegan case had been caused by running over a child instead of a horse, the negligence under the statute would have been the same.
In Leggett v. Rome, W. & O. R. R. Co. (41 Hun, 80) by the failure of the railroad company to build its fence along the track the plaintiff was unable to pasture his land, and he recovered damages against the company therefor.
In Union Pacific R. Co. v. McDonald (152 U. S. 262) a Colorado statute obliging the owners of coal mines to fence their slack piles and abandoned pits, required them to be so fenced as to afford permanent protection to all stock endangered thereby, and made the violation of the act a misdemeanor. A child injured by an unfenced slack pile sustained a recovery against the owner.
In Kelley v. N. Y. State Railways (207 N. Y. 342) plaintiff’s steam roller was traveling upon the highway in violation of section 329 of the Highway Law, which required that a person should precede the roller at least one-eighth of a mile to “ notify and warn persons traveling and using such highway or street with horses or other domestic animals, of the approach thereof,” etc. The steam roller collided with the defendant’s car, apparently by the defendant’s negligence. The court charged, under exception, that this statute did not have any application on the question of plaintiff’s contributory negligence. Subdivision 11 of section 1425 of the Penal Law, in effect, makes a violation of section 329 of the Highway Law a misdemeanor, without, however, referring specifically to that section. In calling attention to this subdivision of the Penal Law, the defendant requested the court to charge that it “ is general in its terms and does not speak of horses or domestic animals, and applies to this case; ” which request was denied and the defendant excepted. The Court of Appeals says that the defendant may have been negligent in going at a high [283]*283rate of speed, but that the plaintiff was violating the Penal Law at that time, and that fact was a proper subject for consideration, and continues: “
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John M. Kellogg, P. J.:
The defendant’s four-track road, -with three side tracks, runs through the plaintiff’s farm on which were kept horses [280]*280and cows. There was no fence between the track and the plaintiff’s house. The house was about seventy feet distant from the nearest rail. The ground between the house and the track was substantially level at the place in question. The plaintiff’s family consisted of himself, wife and four children. Another family in the house had seven children. Upon the day of the intestate’s death he was under observation by his family, but in some manner he slipped away from them and was killed upon the track by the Empire State Express, which was running at about sixty miles per hour. The intestate was about two years old. The defendant and its employees knew of the conditions existing at this place and, in a general way, that the house was occupied, in part, by small children. Concededly the defendant did not maintain a fence along its track, as required by section 52 of the Railroad Law. The plaintiff, in this action to recover for the death of his intestate, was nonsuited, upon the ground that the statute relates, not to persons, but only to the domestic animals mentioned in it. The trial proceeded upon the theory that the defendant failed to maintain a fence as required by statute; the defendant claimed freedom from liability because a person and not a domestic animal had been killed. The motion for a nonsuit was general in its terms and we, therefore, will consider only the question actually decided and litigated at the trial. (Bromley v. Miles, 51 App. Div. 95, 96.) No other question was raised or argued upon this appeal.
The appellant contends that the failure to maintain the fence, as required by the statute, was a violation of duty on the part of the defendant, and was some evidence of negligence, which, with the other facts shown, should have been submitted to the jury on the question of the defendant’s negligence. Section 52 of the Railroad Law requires the company to maintain fences on the sides of its road “ of height and strength sufficient to prevent cattle, horses, sheep and hogs from going upon its road from the adjacent lands. * * * So long as such fences and cattle-guards are not made, or are not in good repair, the corporation, its lessee or other person in possession of its road, shall be liable for all damages done by their agents or engines or cars to any domestic animals thereon. * * * No railroad need be fenced, when not [281]*281necessary to prevent horses, cattle, sheep and hogs from going upon its track from the adjoining lands.”
Fully to understand this statute we must remember that it was enacted to remedy, in part, a defect of the common law. The owners of horses, cows, sheep and hogs were required, at common law, to restrain them, and if such animals strayed upon the premises of another, they became trespassers, so that the owner could not recover for injury to them while so trespassing unless the injury was intentionally and willfully committed. (Knight v. New York, Lake Erie & W. R. R. Co., 99 N. Y. 25.)
The statute was not intended to legalize such trespass, but it was enacted for the benefit of the public and the occupant of the adjoining premises. The railroad company was required to build the fence. If it did not it was liable for any injuries sustained by domestic animals caused by the railroad’s agents, engines or cars. It was properly held in the Knight Case (supra), where the trespassing colt fell through a railroad bridge and was killed, that this statute gave no remedy. To a like effect is Jimerson v. Erie R. R. Co. (203 N. Y. 518). The statute expressly provides what damages should be paid by the company in case of injury to cattle, and leaves the owner to bear any other loss coming to his cattle from a violation of the statute.
In Donnegan v. Erhardt (119 N. Y. 468), because of the absence of a fence, the train collided with a horse upon the track and a brakeman was injured. The recovery was sustained, the court saying (p. 473): “ But whatever the rule would be independently of the statute, there is no reasonable doubt that it imposes the absolute duty upon a railroad company to fence its tracks. That duty, it is reasonable to suppose, was imposed not only to protect the lives of animals but also to protect human beings upon railroad trains. It is made an unqualified duty, and for a violation thereof causing injury the railroad company incurs responsibility. The sole consequence of an omission of the statutory duty is not specified, and was not intended to be specified in the statute. Responsibility for injuries to animals was specially imposed, because in most cases there would, independently of the statute, have been no such responsibility, as at common law [282]*282the owner of animals was bound to restrain them, and if they trespassed upon a railroad there was no liability for their destruction, unless it was wilfully or intentionally caused.”
The case also determines that irrespective of the statute the judgment against the defendant could stand upon the facts shown, and the facts shown were not stronger proof of negligence than in the instant case. On principle, if the accident in the Donnegan case had been caused by running over a child instead of a horse, the negligence under the statute would have been the same.
In Leggett v. Rome, W. & O. R. R. Co. (41 Hun, 80) by the failure of the railroad company to build its fence along the track the plaintiff was unable to pasture his land, and he recovered damages against the company therefor.
In Union Pacific R. Co. v. McDonald (152 U. S. 262) a Colorado statute obliging the owners of coal mines to fence their slack piles and abandoned pits, required them to be so fenced as to afford permanent protection to all stock endangered thereby, and made the violation of the act a misdemeanor. A child injured by an unfenced slack pile sustained a recovery against the owner.
In Kelley v. N. Y. State Railways (207 N. Y. 342) plaintiff’s steam roller was traveling upon the highway in violation of section 329 of the Highway Law, which required that a person should precede the roller at least one-eighth of a mile to “ notify and warn persons traveling and using such highway or street with horses or other domestic animals, of the approach thereof,” etc. The steam roller collided with the defendant’s car, apparently by the defendant’s negligence. The court charged, under exception, that this statute did not have any application on the question of plaintiff’s contributory negligence. Subdivision 11 of section 1425 of the Penal Law, in effect, makes a violation of section 329 of the Highway Law a misdemeanor, without, however, referring specifically to that section. In calling attention to this subdivision of the Penal Law, the defendant requested the court to charge that it “ is general in its terms and does not speak of horses or domestic animals, and applies to this case; ” which request was denied and the defendant excepted. The Court of Appeals says that the defendant may have been negligent in going at a high [283]*283rate of speed, but that the plaintiff was violating the Penal Law at that time, and that fact was a proper subject for consideration, and continues: “ The statute, of course, affords persons belonging to the class which it expressly mentions greater protection than to those outside that class, but it is some evidence in favor of the latter. It is evidence for the jury to consider on the question of negligence with all the other evidence in the case. The court, therefore, erred in taking the statute from the consideration of the jury. The United States Supreme Court in the case of Union Pacific Railway Co. v. McDonald (152 U. S. 262) held that a statute analogous to the Highway Law applied trader circumstances somewhat similar to the facts shown in this action.”
Manifestly the statute was intended to prevent the frightening of horses and animals upon the highway; the court, however, did not limit it to such cases. Clearly there was no danger that the trolley car would be frightened. The case can stand only upon the broad theory that the statute imposes an absolute duty upon a person running a steam roller upon the highway, and the violation of that duty is evidence of negligence in favor of any one who sustains an injury thereby. It is apparent that the court was considering the two rulings, first as to the Penal Law, and second as to the statute. It had already held that the violation of the Penal Law was some evidence of negligence, and, in the quotation we have just made, the court, when it refers to the statute, must refer to the highway statute and not to the Penal Law. If we are right in that view, the case is controlling authority here.
In Amberg v. Kinley (214 N. Y. 531), in showing the distinction between an action to recover damages for the breach of a statutory duty and one based solely upon negligence, the court says (p. 536): “ This principle of law is illustrated in Union Pacific Railway Co. v. McDonald and Fluker v. Ziegele Brewing Co. [201 N. Y. 40]. In Union Pacific Ry. Co. v. McDonald the defendant failed to erect a fence required by statute to protect cattle and horses, and by reason of the absence of the fence a child was injured. The court, quoting, said: ‘ And although in the case of injury to persons by reason of the same default, the failure to fence is not, as in the case of animals, conclusive of the liability, irrespective [284]*284of negligence, yet an action will lie for the personal injury, and this breach of duty will be evidence of negligence.’ ”
If the defendant had carried on its business in the manner required by law, the accident would not have happened. The defendant violated a duty imposed upon it by statute, and the violation of that duty is evidence of negligence.
It must be conceded that the decisions in the various States are not in harmony on these fence statutes, but I think that our Court of Appeals has given such recognition to the Union Pacific case that we are required to follow it. The Court of Appeals, in the Donnegan case, does not refer to the Knight case, although it was cited in the briefs. Neither does the Jimerson case, refer to the Donnegan case, although that likewise was in the brief. The Court of Appeals must, therefore, have considered that the cases stand upon different grounds — the Knight and Jimerson cases upon the theory that the statute has fixed a certain liability for the loss of animals, and thereby has excluded other liabilities on their account; the Donnegan case, upon the theory that the company did not build the fence which the statute required it to build and, therefore, the violation of the statute is at least some evidence of negligence. The Union Pacific case is the only authority cited in the opinion in the Kelley case.
Accordingly I favor a reversal of the judgment and a new trial, with costs to the appellant to abide the event.
All concurred; Cochrane, J., with an opinion.