September Term, 1868
Miles Beach, for the appellant.
O.P. Buel, for the respondent.
The decision of this case involves the construction to be given to section 44 of the general railroad act of 1850, as amended by section 8 of the act of April 15, 1854 (Laws 1850, ch. 140, § 44; Laws 1854, ch. 282, § 8). This eighth section declares, "that every railroad corporation, whose line of road is open for use, shall, within three months after the passage of this act, and every railroad company formed, or to be formed, but whose lines are not now open for use, shall, before the lines of such railroad are opened, erect, and thereafter maintain, fences on the sides of their roads of the height and strength of a division fence as required by law, with openings or gates, or bars therein, at the farm crossings of railroads, for the use of the proprietors of the lands adjoining such railroads, and shall also construct, where the same has not been done, and hereafter maintain, cattle-guards, at all road crossings, suitable and sufficient to prevent cattle, horses, sheep and hogs, from getting on to such railroad;" and the section then declares, "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 such corporation, to any cattle, horses, sheep or hogs thereon; and when such fences and guards shall have been duly made, and shall be kept in good repair, such railroad corporation shall not be liable for any such damages, unless negligently or willfully done." (Laws 1854, pp. 611, 612, § 8.) It was held in the case of Brace v. The New York Central R.R. Co. ( 27 N.Y. 269), that this statute, requiring railroad corporations to maintain cattle-guards at road crossings, applies as well to streets which are crossed by railroads in villages as to country highways.
The fact, that a railroad crossing is at or near a depot, and that to make such cattle-guard there would inconvenience the company, will not excuse them from complying with the positive requirement of the statute. ( Bradly v. The Buffalo, New York and Erie R.R. Co., 34 N.Y. 427.)
These statutes impose the duty upon railroad companies to fence both sides of their track, and are liable for damages done to cattle, so long as such fences are not made and kept in good order. ( Shepherd v. The Buffalo, New York and Erie R.R. Co., 35 N.Y. 641.)
The passage of this act being induced by public considerations, and its purpose being to protect the traveling public and the owners of domestic animals along the line of their road, it should receive a liberal construction to effectuate the benign purpose of its framers. A rigid and literal reading would, in many cases, defeat the very object of the statute, and would exemplify the maxim, that "the letter killeth, while the spirit keepeth alive." Every statute ought to be expounded, not according to the letter, but according to the meaning; " qui haeret in litera haret in cortico." (Dwar. on Stat. 690.) And the intention is to govern, although such construction may not, in all respects, agree with the letter of the statute. (Ploud, 205.) The reason and object of a statute are a clue to its meaning (Dwar. on Stat. 695), and the spirit of the law, and the intentions of its makers are diligently to be sought after, and the letter must bend to these. (6 Bac. Abr. 384, 6th ed. Lond. 1807; 1 Kent's Com. 465; Smith's Com. on Stat. §§ 709, 710.) The defendant in this case seeks to escape liability for the injury it has inflicted through the letter of the statute. The statute declares, "that every railroad corporation shall erect and maintain fences on the sides of their road," etc., and it is claimed in the case before us, that the road at the place where the cow in question was killed is not their road, but the road of the Troy Union Railroad company, and consequently the defendant is not liable.
The case shows, that the defendant is a railroad corporation, and helped to construct this Union Troy railroad, and have secured to them, in law, the right to use this railroad, and run their cars over it. The Troy Union Railroad company is a corporation of a peculiar character. It was never organized to become a common carrier, or for the purpose of constructing a railroad for its own use. It was organized solely and exclusively for the purpose of constructing a railroad through the city of Troy, for the use and benefit of the railroad companies running their trains to and from the said city. This really is the whole extent of its powers.
It neither owns nor runs any engines or cars. In fact, it has no right to operate this railroad. It is not organized for profit, and pays no dividends. It is supported by assessments on those railroad companies for whose benefit the road was constructed. Its passenger house and other property, and all its rights of property, if not its franchise, belong to these different railroad companies which are entitled to run and use the road. Its management is confided to a board of directors, chosen exclusively by these different railroad companies with the mayor of Troy. Having constructed the road, the principle object of creation was accomplished. By the organic act, the defendant is forever entitled to use the road, and have the right and privilege of running its engines and cars thereon, to the exclusion of the Troy Union Railroad company. The case shows, that the track of this railroad at the place of collision is a mere continuation of the defendant's line of road, and that it alone uses the road at that point.
Upon these facts, I cannot doubt but the defendant is within the spirit and intent of this statute in regard to fences liable for the injury complained of in this case. The defendant is essentially owner and operator of this road. The statute was designed to guard against the very mischief complained of against the defendant in this case: the operating of a railroad without the statute safeguard of having it fenced. Those four operative railroad corporations, for whose use this road was constructed, must all be held liable to respond to the obligations imposed by the general railroad act in regard to fencing. The Supreme Court of Vermont, in the case of Clement v. Canfield (28 Verm. 302), held, under a statute substantially like ours, that the lessee of a railroad, who was operating it, was liable if the fences were not maintained.
The judgment of the justice should be affirmed.