De Caprio v. New York Cent. R. Co.

• Decision Date: 19 April 1921
• Citation: 131 N.E. 746,231 N.Y. 94
• Parties: DI CAPRIO v. NEW YORK CENT. R. CO.
• Court: New York Court of Appeals Court of Appeals

231 N.Y. 94

131 N.E. 746

DI CAPRIO

v.NEW YORK CENT. R. CO.

Court of Appeals of New York.

April 19, 1921.

Action by Tony Di Caprio, as administrator of the goods, chattels, and credits of Peter Di Caprio, deceased, against the New York Central Railroad Company. From a judgment of the Appellate Division (189 App. Div. 279,178 N. Y. Supp. 626) which reversed the judgment of nonsuit and granted new trial, defendant appeals.

Judgment of Appellate Division reversed, and that of trial court affirmed.

Appeal from Supreme Court, Appellate Division, Third Department.

W. J. Kernan, of Utica, for appellant.

H. V. Borst, of Amsterdam, for respondent.

ANDREWS, J.

Section 52 of the Railroad Law (Consol. Laws, § 49) provides that a railroadcorporation shall erect and maintain fences on both sides of its right of way sufficiently high and strong to prevent horses, cattle, sheep, and hogs from going upon its road from the adjacent lands, and until this is done shall be liable for all damages caused by its agents, engines, or cars to any domestic animal thereon. The fence need not be built, however, when not necessary to prevent such animals from reaching its tracks.

Through a farm occupied by Tony Di Caprio ran the New York Central Railroad. On this portion of its road the defendant had failed to comply with the statute. As a result one of Di Caprio's cows had been killed. His house stood some 70 feet from the tracks. The space between was substantially level. On May 30, 1917, his child, two years of age, momentarily escaped from those having control of it, wandered on to the railroad, and was struck by a passing train. For his death this action is brought; the sole negligence claimed being the absence of the fence. It is said by the appellant that the legislative intent in requiring fences was not the safety of persons who might trespass upon the right of way, but was to prevent the presence thereon of domestic animals and the consequent possibility not only of loss to their owners, but of danger to passengers and employees in the operation of trains. Therefore, so far as the deceased is concerned, there was no negligence which will permit a recovery of damages for his death.

[1] Where a statutory duty is imposed upon one for the direct benefit or protection of another, and the latter is damaged because this duty is not performed, a cause of action arises in his favor based upon the statute (Amberg v. Kinley, 214 N. Y. 531, 108 N. E. 830, L. R. A. 1915E, 519), but no one not included in the class so directly to be benefited may complain because the statute is not complied with (Lang v. N. Y. Central R. R. Co., 227 N. Y. 507, 125 N. E. 681). The rule is not dissimilar to that applicable to provisions said to be unconstitutional. Middleton v. Texas Power & Light Co., 249 U. S. 152, 156, 39 Sup. Ct. 227, 63 L. Ed. 527.

[2] On the other hand, a statute or a city ordinance may be general in its character and may define the degree of care which one shall exercise in his calling or occupation. Failure to use such care is evidence more or less conclusive of negligence as to every one. Again, a particular statute may have both ends in view. Kelley v. N. Y. State Railways, 207 N. Y. 342, 100 N. E. 1115. When this is so, he who is to be particularly protected has a cause of action because the statute is violated to his injury. Others, one based on negligence.

[3] Primarily the section in question was intended to protect the owners of domestic animals against loss and passengers and employees of the railroad against danger. This is clear, not only from the language used, but from the history of the act. As to such persons, where, because of the absence of a fence an animal strayed upon the track and a collision resulted, the statute imposes responsibility. Donnegan v. Erhardt, 119 N. Y. 468, 23 N. E. 1051,7 L. R. A. 527. Was there, however, the further intent to safeguard any individual who might unconsciously trespass upon the right of way? We find no sign of such a purpose. The fence is to be sufficient to prevent animals going upon the railroad from adjacent lands. Until built, the company is liable for all damages done to such animals. No fence is required if not necessary to prevent such a trespass. Because of the peculiar use made by the railroad of its land and the excessive peril caused not only to the animal straying upon it, but to the road itself, it seemed wise to abolish in this instance the ancient rule and to require the corporation to furnish the necessary protection. This is what the Legislature had in mind. No hint is given that it also considered the possibility of an involuntary trespass by an adult or a child; that for this object also fences were commanded. Certainly, in view of subdivision 4 of section 1990 of the Penal Law (Consol. Law, c. 40), it had no thought of a voluntary trespass.

There seems to be no decision in this state which controls our action. Elsewhere under somewhat similar statutes the results conflict. In Massachusetts (Menut v. B. & M. Railroad, 207 Mass. 12, 92 N. E. 1032,30 L. R. A. [N. S.] 1196,20 Ann. Cas. 1213), Maine (Kapernaros v. B. & M. Railroad, 115 Me. 467, 99 Atl. 441), New Hampshire (Casista v. B. & M. Railroad, 69 N. H. 649, 45 Atl. 712), Ohio (Lake Shore & M. S. Ry. Co. v. Lüdtke, 69 Ohio St. 384, 69 N. E. 653), Illinois (Bischof v. I. S. Ry. Co., 232 Ill. 446, 83 N. E. 948,13 Ann. Cas. 185), Indiana (B. & O. S. W. Ry. Co. v. Bradford, 20 Ind. App. 348, 49 N. E. 388,67 Am. St. Rep. 252), and Iowa (Cohoon v. C., B. & Q. Ry. Co., 90 Iowa, 169, 57 N. W. 727), it is said that the object of the Legislature is solely to prevent the straying of cattle. The contrary, at least so far as children...