Willard, J.
If the Saratoga and Schenectady Railroad Company would have been liable to the plaintiff for the killing of his cow on the occasion in question, had the action been brought against them, the defendants are also liable. The master is liable for the acts of the servant while acting within the scope of his authority, upon the principle that what a man does by another he does by himself. (Reeve’s Bom. Rel. 356, et seq.) When the act is a tort, arising from the negligence of the servant, while in the service and legitimate business of the master, the master and servant are both liable. (Ib. And see Wright v. Wilcox, 19 Wend. 343.)
The question then recurs, would the railroad company have been liable upon this evidence, had the action been brought against them ? The charter to that company was granted on the 16th February, 1831, (Laws of 1831, p. 41,) and the 15th section enacts that the corporation shall possess the general powers, and be subject to the general restrictions and liabilities prescribed by such parts of the eighteenth chapter of the first part of the revised statutes, as are not repealed. The charter [364]*364is silent as to their erecting fences, except upon the line of their road, by the 10th section, and has no provision as to cattle-guards. And there is no clause in the charter reserving to the legislature the right to alter or amend it, without the consent of the company, unless the 15th section, above cited, contains such authority. By title 3, ch. 18 of part 1st of the revised statutes, § 8, it is thus enacted, “ The charter of every corporation, that shall hereafter be granted by the legislature, shall be subject to alteration, suspension and repeal, in the discretion of the legislature.” This section is still in force, and is as operative upon the railroad companies incorporated since the 1st January, 1830, as if it were repeated in their respective charters. By the 42d section of the general act for the incorporation of railroads, passed March 27, 1848, (Laws of 1848, p. 221-236,) it is thus enacted, “ Such corporations shall erect and maintain fences on the sides of their road, of the height and strength of a division fence, as required by law, with openings and gates therein, and farm crossings of the road for the use of the proprietors of lands adjoining such railroad, and also construct and maintain cattle-guards at all road crossings, suitable and sufficient to prevent cattle and animals from getting on to the railroad. Until such fences and cattle-guards shall be duly made, the corporation and its agents shall be liable for all damages which shall be done by their agents or engines to cattle, horses, or other animals thereon, and after such fences and guards shall be duly made, the corporation shall not be liable for any such damages, unless negligently or wilfully done,” &c. The foregoing provisions are made applicable to existing railroad corporations, by the 46th section of the act before cited; and thus, by force of the said several statutes, they became as much a part of the charter of the railroads granted since the revised statutes took effect, as if they had been originally inserted therein. This act took effect on its passage, and is prospective and not retrospective. It merely affords the rule for cases arising subsequent to the 27th March, 1848.
From what has been said it is obvious that there is nothing in the 42d and 46th sections of the general act of 1848, that is [365]*365in conflict with the constitution. The legislature have done nothing but to exercise a power reserved to them by the charter of the company, and the general act as to incorporations, which was made a part of it. If the 42d and 46th sections are an alteration of the charter of the Saratoga and Schenectady railroad, the legislature had a right to make such alterations. Whether those sections alter the charter, or merely contain police regulations for the safety of passengers and the security of the animals of farmers living along the line, they fall within the undoubted competency of the legislature, who alone are the judges of their wisdom and expediency.
As the Saratoga and Schenectady railroad had omitted to erect fences and construct cattle-guards, at the spot where this occurrence happened, they are responsible for the injury. Having neglected and refused to comply with the precautionary measures, deemed essential by the legislature, they must suffer the consequences resulting from such neglect. Although the accident in this case appears by the evidence to have been nearly, if not quite, inevitable, yet no man can shelter himself from, responsibility for an act, however inevitable, which has been brought upon him by his own wilful violation of duty. (See 1 Cowen’s Tr. 60 ; Jones on Bail. 70, 117, 118, 119 ; 2 Kent’s Com. 576 ; Code Nap. 1881, 1882.) Had the fences been erected and the cattle-guards constructed, as the statute required, the injury to the plaintiff’s property would not have been occasioned. The defendants, it is said, were driven to the necessity of deciding between saving the lives of their passengers, or the life of the plaintiff’s cow; and it is urged that they should not be held responsible for yielding to the stronger impulse of humanity and duty. This position would be impregnable, if the necessity had not been created by their employers. They were not compelled to remain in the service of the railroad company, after the latter neglected to comply with the statute. Such neglect greatly increased their responsibility, and absolved them from their contract of service. If they continued to remain at their respective posts, they have no just cause of complaining [366]*366if the public hold them accountable for the consequences, resulting from this omission of their employers.
The wisdom and policy of the measures prescribed to railroad companies by the 42d section of the general act, can never be drawn in question in a judicial forum. If they are not forbidden by the constitution, as we think they are not, it is the duty of the court to enforce them. They do not interfere further with the freedom of individual action, or the rights of property, than other restrictions which have been, in numerous instances, found necessary and expedient, and which have been followed with general acquiescence and commendation. They spring from the same fountain of natural justice, which commands every one so to use his own as not to impair another’s right. They rest on the same footing as the law of the road, the regulations with respect to the meeting and passing of canal boats on our canals, and the exhibiting of lights at a given elevation by steamboats and vessels on our internal waters. (1 R. S. 695, 245, 683, 684.)
No part of the general railroad act authorizes, as has been supposed, the depasturing of the land of the corporation. On the contrary, the obvious policy of the act is to prevent animals not only from straying onto the road, but also to forbid individuals from leading or driving any horse or other animal on the road, and within such fences and guards, other than at farm crossings, without the consent of the corporation, under the penalty of ten dollars, besides being liable in damages to the party aggrieved. Here is a cumulative remedy given, above what the common law affords, for a trespass. The 40th section subjects to punishment, as for a misdemeanor, all wilful injuries to the buildings, structures, &c.
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Willard, J.
If the Saratoga and Schenectady Railroad Company would have been liable to the plaintiff for the killing of his cow on the occasion in question, had the action been brought against them, the defendants are also liable. The master is liable for the acts of the servant while acting within the scope of his authority, upon the principle that what a man does by another he does by himself. (Reeve’s Bom. Rel. 356, et seq.) When the act is a tort, arising from the negligence of the servant, while in the service and legitimate business of the master, the master and servant are both liable. (Ib. And see Wright v. Wilcox, 19 Wend. 343.)
The question then recurs, would the railroad company have been liable upon this evidence, had the action been brought against them ? The charter to that company was granted on the 16th February, 1831, (Laws of 1831, p. 41,) and the 15th section enacts that the corporation shall possess the general powers, and be subject to the general restrictions and liabilities prescribed by such parts of the eighteenth chapter of the first part of the revised statutes, as are not repealed. The charter [364]*364is silent as to their erecting fences, except upon the line of their road, by the 10th section, and has no provision as to cattle-guards. And there is no clause in the charter reserving to the legislature the right to alter or amend it, without the consent of the company, unless the 15th section, above cited, contains such authority. By title 3, ch. 18 of part 1st of the revised statutes, § 8, it is thus enacted, “ The charter of every corporation, that shall hereafter be granted by the legislature, shall be subject to alteration, suspension and repeal, in the discretion of the legislature.” This section is still in force, and is as operative upon the railroad companies incorporated since the 1st January, 1830, as if it were repeated in their respective charters. By the 42d section of the general act for the incorporation of railroads, passed March 27, 1848, (Laws of 1848, p. 221-236,) it is thus enacted, “ Such corporations shall erect and maintain fences on the sides of their road, of the height and strength of a division fence, as required by law, with openings and gates therein, and farm crossings of the road for the use of the proprietors of lands adjoining such railroad, and also construct and maintain cattle-guards at all road crossings, suitable and sufficient to prevent cattle and animals from getting on to the railroad. Until such fences and cattle-guards shall be duly made, the corporation and its agents shall be liable for all damages which shall be done by their agents or engines to cattle, horses, or other animals thereon, and after such fences and guards shall be duly made, the corporation shall not be liable for any such damages, unless negligently or wilfully done,” &c. The foregoing provisions are made applicable to existing railroad corporations, by the 46th section of the act before cited; and thus, by force of the said several statutes, they became as much a part of the charter of the railroads granted since the revised statutes took effect, as if they had been originally inserted therein. This act took effect on its passage, and is prospective and not retrospective. It merely affords the rule for cases arising subsequent to the 27th March, 1848.
From what has been said it is obvious that there is nothing in the 42d and 46th sections of the general act of 1848, that is [365]*365in conflict with the constitution. The legislature have done nothing but to exercise a power reserved to them by the charter of the company, and the general act as to incorporations, which was made a part of it. If the 42d and 46th sections are an alteration of the charter of the Saratoga and Schenectady railroad, the legislature had a right to make such alterations. Whether those sections alter the charter, or merely contain police regulations for the safety of passengers and the security of the animals of farmers living along the line, they fall within the undoubted competency of the legislature, who alone are the judges of their wisdom and expediency.
As the Saratoga and Schenectady railroad had omitted to erect fences and construct cattle-guards, at the spot where this occurrence happened, they are responsible for the injury. Having neglected and refused to comply with the precautionary measures, deemed essential by the legislature, they must suffer the consequences resulting from such neglect. Although the accident in this case appears by the evidence to have been nearly, if not quite, inevitable, yet no man can shelter himself from, responsibility for an act, however inevitable, which has been brought upon him by his own wilful violation of duty. (See 1 Cowen’s Tr. 60 ; Jones on Bail. 70, 117, 118, 119 ; 2 Kent’s Com. 576 ; Code Nap. 1881, 1882.) Had the fences been erected and the cattle-guards constructed, as the statute required, the injury to the plaintiff’s property would not have been occasioned. The defendants, it is said, were driven to the necessity of deciding between saving the lives of their passengers, or the life of the plaintiff’s cow; and it is urged that they should not be held responsible for yielding to the stronger impulse of humanity and duty. This position would be impregnable, if the necessity had not been created by their employers. They were not compelled to remain in the service of the railroad company, after the latter neglected to comply with the statute. Such neglect greatly increased their responsibility, and absolved them from their contract of service. If they continued to remain at their respective posts, they have no just cause of complaining [366]*366if the public hold them accountable for the consequences, resulting from this omission of their employers.
The wisdom and policy of the measures prescribed to railroad companies by the 42d section of the general act, can never be drawn in question in a judicial forum. If they are not forbidden by the constitution, as we think they are not, it is the duty of the court to enforce them. They do not interfere further with the freedom of individual action, or the rights of property, than other restrictions which have been, in numerous instances, found necessary and expedient, and which have been followed with general acquiescence and commendation. They spring from the same fountain of natural justice, which commands every one so to use his own as not to impair another’s right. They rest on the same footing as the law of the road, the regulations with respect to the meeting and passing of canal boats on our canals, and the exhibiting of lights at a given elevation by steamboats and vessels on our internal waters. (1 R. S. 695, 245, 683, 684.)
No part of the general railroad act authorizes, as has been supposed, the depasturing of the land of the corporation. On the contrary, the obvious policy of the act is to prevent animals not only from straying onto the road, but also to forbid individuals from leading or driving any horse or other animal on the road, and within such fences and guards, other than at farm crossings, without the consent of the corporation, under the penalty of ten dollars, besides being liable in damages to the party aggrieved. Here is a cumulative remedy given, above what the common law affords, for a trespass. The 40th section subjects to punishment, as for a misdemeanor, all wilful injuries to the buildings, structures, &c. of the corporation; thus protecting, by the highest sanction, among other things the fences and cattle-guards which they are required to erect. In truth, the security of passengers on the railroad, and thus the advancement of the interest of the railroad corporation, were the primary motives for these stringent and salutary regulations.
A criticism has been applied to the language of the 46th section, which, if correct, will defeat the law altogether. It is urged [367]*367that the duties, liabilities and provisions contained in the general act are only applicable to existing railroad corporations, “ so far as they shall be applicable to their present conditions and not inconsistent with their several chartersand it is argued that as the Saratoga and Schenectady railroad has long since been completed, without cattle-guards, and as the charter is silent on the subject, it was not competent for the legislature to impose additional duties upon the company. I have already anticipated these objections in part, and shown that there is no constitutional impediment in the way. There are several provisions in the general law, which .were not intended to affect existing charters. Such, I think, was the 25th section, which subjects companies running parallel, or nearly so, to the canal, and within thirty miles of it, to the payment of canal tolls on the transportation of property, other than the ordinary baggage of passengers. Such also was the 12th section, imposing a personal liability on the stockholders, in certain cases. Indeed the latter section was repealed two days after the passage of the general law, so far as it related to existing railroads. (Laws of 1848, p. 2.40.)
The objection that Losee ought to have been discharged, on the ground that he was not the agent of the company, but the servant of the engineer, and employed by him, has been strenuously urged. This court has decided that one of several defendants sued for a tort, is entitled to be discharged when the facts with respect to him, are such that if standing alone he would have been entitled to a nonsuit; and that a refusal to grant a discharge in a proper case, is error. (McMartin v. Taylor, 2 Barb. Sup. Court Rep. 356.) Although the fireman is hired by the engineer, and has charge of the brake under the direction of the engineer, he is still, in a legal sense, the servant or agent of the company. , It can not be doubted that the company would be responsible for an injury occasioned by an incompetent fireman or brakeman. If a servant employs another servant to do a piece of business, and in doing it the servant so employed is guilty of an injury, the master is liable. (Reeve’s Dom. Rel. 365. Busk v. Steinman, 1 Bos. & Pull. 404. Ran[368]*368dleson v. Murray, 8 Ad. & Ellis, 109. The Mayor of N. Y. v. Bailey, 2 Denio, 443, per Walworth, Ch.) This is upon the principle that both are servants of the. same master. The fireman aids the engineer in conducting the train. Both are servants of the same master, and all are responsible either jointly or severally for an injury resulting from negligence in conducting the train.
I think the judgment of the justice was right, as was also that of the county judge in affirming it.
Paige, P. J. and Cady, J. concurren.