Donegan v. Erhardt

• Decision Date: 25 February 1890
• Citation: 23 N.E. 1051,119 N.Y. 468
• Parties: DONEGAN v. ERHARDT, Receiver.
• Court: New York Court of Appeals Court of Appeals

119 N.Y. 468

23 N.E. 1051

DONEGAN

v.ERHARDT, Receiver.¹

Court of Appeals of New York.

Feb. 25, 1890.

Appeal from superior court of New York city, general term.

Action by Owen Donegan against Joel B. Erhardt, as receiver of the New York City & Northern Railroad Company, to recover damages for injuries sustained in a collision of a train, on which plaintiff was a brakeman, with a horse that had entered defendant's road through a defective fence. Defendant appealed to the general term from a judgment in favor of plaintiff, and from an order denying a motion for a new trial, and, the general term having reversed the judgment, and granted a new trial, the plaintiff brings this appeal.

Hector M. Hitchings, for appellant.

Sherman Evarts, for respondent.

EARL, J.

While the plaintiff, in 1887, was in the employ of the defendant, as a brakeman upon a train of cars, in the night-time, the train came in collision with a horse upon the railroad track, and was thereby wrecked; and he was seriously injured. He brought this action to recover damages for his injuries, claiming that the horse got upon the railroad track because the defendant had carelessly and negligently permitted the fence along the railroad to become ruinous, broken down, and out of repair, and that it had therefore violated the duty imposed upon it by section 44 of the general railroad act of 1850, which requires railroad companies to build and maintain fences on the sides of their roads of the height and strength of division fences, and that so long as such fences and cattle-guards shall not be made, and when not in good repair, such railroad corporation and its agents shall be liable for damages which shall be done by the agents or engines of any such corporation to any cattle, horses, sheep, or hogs thereon. The claim of the defendant was that at common law, independently of the statute, the railroad company would not have been liable for the accident which happened to the plaintiff, and that the statute specified the extent of the liability imposed upon a railroad corporation for its omission to build or maintain fences, and that thus it was liable only for damages done to animals coming upon the railroad track through a defective fence. The trial judge, however, submitted the case to the jury, and instructed them that if this horse came company for defective fences is that mentioned the defendant was bound to maintain and keep in repair, and which was negligently permitted to be out of repair, the plaintiff could recover; and the jury rendered a verdict in his favor. From the judgment entered upon the verdict the defendant appealed to the general term, and there the judgment was reversed upon the ground that the only responsibility of a railroad company for defective fences in that mentioned in the statute, and that at common law, independently of the statute, a railroad company would not have been liable to the plaintiff for the injuries sustained by him.

We think the learned general term fell into error. A railroad company, for the safety of its passengers, as well as its employes upon its engines and cars, is bound to use suitable care and skill in...