Gonsenhauser v. New York Cent. R. Co.

• Decision Date: 09 July 1959
• Citation: 188 N.Y.S.2d 901,8 A.D.2d 483
• Parties: Max GONSENHAUSER, Plaintiff-Respondent, v. NEW YORK CENTRAL RAILROAD COMPANY, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 901

188 N.Y.S.2d 901

8 A.D.2d 483

Max GONSENHAUSER, Plaintiff-Respondent, v. NEW YORK CENTRAL RAILROAD COMPANY, Defendant-Appellant.

Supreme Court, Appellate Division, Fourth Department.

July 9, 1959.

Cucci, Welch & Boehm, Rochester, for plaintiff-respondent (David O. Boehm, Rochester, of Counsel).

Harris, Beach, Keating, Wilcox, Dale & Linowitz, Rochester, for defendant-appellant (Thomas M. Hampson, Rochester, of Counsel).

Before KIMBALL, J. P., and WILLIAMS, BASTOW, GOLDMAN and HALPERN, JJ.

HALPERN, Justice.

This action was brought to recover damages for injuries alleged to have been sustained by the plaintiff's cows while they were on the defendant's right of way.

The negligence charged against the defendant was the failure to maintain in good condition, pursuant to section 52 of the Railroad Law, a railroad fence between the railroad right of way and the land of one Lovejoy, on which the plaintiff's cows were pastured. The evidence established that the railroad fence was defective and that the defendant had timely notice of the defect.

In July, 1955, the plaintiff had 35 milk cows in the Lovejoy pasture. Many of the cows were pedigreed cows, registered by the Holstein-Friesian Association. In the early evening of July 18, 1955, the cows escaped from the pasture onto the defendant's right of way through the defective portion of the railroad fence. A train came along and struck and killed one of the cows. The rest of the cows stampeded in fright and suffered cuts, bruises and lacerations as a result of striking each other or as a result of falling or coming in contact with objects on the ground.

The plaintiff claimed that all 35 cows had been on the right of way at the time of the episode and had suffered injury but at a pretrial conference he agreed to limit his claim to 29 cows. In addition to the cow that was killed by the train, two others died within a few days. As a result of the injuries, the remaining cows were no longer usable as milk cows. Twenty-two cows were sold for beef at a considerable loss. The other cows could not even be sold for beef, either because of the extent of their injuries or because they had been given medicines which rendered them unfit for human consumption. These were a total loss, nothing being paid for them by the glue factory and tannery which hauled them away. All of the cows were due to freshen in a month or so and 18 of them aborted as a result of the fright and the accompanying injuries.

The trial court charged that recovery could be had only for those cows which were actually on the right of way. The court also charged that 'there can be no recovery in this case based solely upon fright' but that there could be a recovery for physical injuries suffered as a result of the stampede. The defendant's attorney asked the court to charge that there could be no recovery 'for any injuries to any cattle unless they were actually struck by the train'. The court declined to so charge.

The jury returned a verdict in favor of the plaintiff in the amount of $5,268. So far as can be determined upon an analysis of the proof, this represented an allowance of damages for the loss of about 23 or 24 cows, plus an allowance for the calves lost by abortion, and an allowance for the amount of the veterinarian's bill.

Upon this appeal, the defendant raises a question as to whether there were as many as 23 or 24 cows upon the right of way at the time of the episode but, in our opinion, there was sufficient evidence to permit the jury to find that that many cows were on the right of way.

The principal point relied upon by the defendant upon this appeal is the point raised by the requested charge. It is the defendant's contention that there can be no recovery of damages under section 52 of the Railroad Law except for animals actually struck by the train.

The pertinent part of section 52 of the Railroad Law reads as follows:

'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'.

Under this statute, it is settle in this State that there can be no recovery for injuries to animals which strayed on to the right of way through a defect in the railroad fence and suffered injury by coming in contact with some stationary object on the railroad premises. The words 'damages done by their agents or engines or cars' in the statute have been construed to mean that the railroad cannot be held liable unless there was some activity on its part (Jimerson v. Erie Railroad Company, 203 N.Y. 518, 97 N.E. 48, 37 L.R.A.,N.S., 1181; Knight v. New York, Lake Erie & Western Railroad, 99 N.Y. 25, 1 N.E. 108). However, where an activity, such as the operation of a train, is involved, the railroad may be held liable for any injury caused by it, and there is no need to show any negligence in connection with it. The railroad's liability is based upon the breach of the fencing statute which allowed the cattle to get onto the right of way.

But the question then arises whether recovery is limited to injuries caused by actual collision with the train or whether recovery can also be had for injuries suffered by the animals because of fright caused by the approach of the train. This appears to be an open question in this State. In many States, proof of the actual collision is required (Louisville, E. & St. L. Ry. Co. v. Thomas, 106 Ind. 10, 5 N.E. 198; Foster v. St. Louis, I. M. & S. R. Co., 90 Mo. 116, 2 S.W. 138; and see Annotation 163 A.L.R. 1233, 1258).

However, there are other States which, under statutes substantially similar to New York's, take the view that an actual collision is not essential (Chicago, B. & Q. Railroad Company v. Cox, 51 Neb. 479, 71 N.W. 37; Meeker v. Northern Pacific Railroad Company, 21 Or. 513, 28 P. 639, 14 L.R.A. 841; see also, under statutes worded somewhat differently from New York's, Young v. St. Louis, K. C. & N. Railway Co., 44 Iowa 172; Maher v. Winona, etc., Railroad Company, 31 Minn. 401, 18 N.W. 105; Atchison T. & Santa Fe Railroad Co. v. Jones, 20 Kan. 527).

This view seems to us to be the better one. There is nothing in the language of the New York statute which requires that there be an actual collision between the train and the cattle. The primary purpose of the fencing statute is to prevent cattle from going onto the right of way and there being injured as the result of the operation of trains. The statute should be liberally construed in order 'to effectuate the benign purpose of its framers' to protect the owners of domestic animals along the line of the railroad (Tracy v. Troy & Boston Railroad Company, 38 N.Y. 433, 437).

As this case demonstrates, the danger of the cattle being injured as a result of fear caused by the approach of a train is as great as, if not greater than, the danger of their being injured by a direct collision. The question is simply one of proximate cause; if the operation of the train was the proximate cause of injury to cattle which would not have been in the area of danger except for the railroad's negligence in maintaining its fences, the railroad is liable under the statute.

The statement to the contrary in Hyatt v. New York, L. E. & W. Railroad Company, 64 Hun 542, 19 N.Y.S. 461, relied upon by the defendant, was an obiter dictum, which we do not find persuasive.

The fact that the injuries were brought about through the medium of fright affords no reason for denying a recovery. This case offers an illustration of what has...