By the Oourt,
By the 44th section of the general rail road act, (Laws of 1850, p. 233,) rail road corporations are required not only to erect, but to maintain, fences on the sides of their roads, and cattle-guards of the description mentioned in that section, which declares that 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 that after such fences and guards shall be duly made and maintained, the corporation shall not be liable for any such damages unless negligently or willfully done, &c.
In this case fences and cattle-guards had been erected on that section of the defendant’s road where the plaintiff’s, and his sister’s, cattle were killed, on the 9th day of April, 1855. But in January or February previous, the rail road fence had been taken down, in two or more places, for the purpose of allowing teams and carriages to pass and repass, which were *198delivering wood to the defendant, and were permitted to remain down until after the accident occurred. It was through one of these openings in the fence that the cattle, strayed| from an adjoining field into the rail road, and upon the track where they were struck by the train and killed.
The section of the act, referred to, was intended,( among other things, in the first place, to require rail road corporations in operation, which had not inclosed their roads with sufficient fences, as well as such as were in process of construction, or to be thereafter constructed, to erect fences and cattle-guards such as the section specifies, under the penalty of paying all damages which should be done by their agents or engines to cattle, horses or other animals thereon; in the second place, to require such corporations to maintain. such fences and cattle-guards, under the like penalty ; and in the third place, to protect the corporations from liability for such damages, after the required fences and cattle-guards should be erected, and while they should he maintained, unless negligently or willfully committed by them or their agents. In order, therefore, to secure such protection, the corporations must keep their fences and cattle-guards up and in good repair, so as at all times and in all places, on their roads, they shall be of the description and in the condition required, and sufficient to answer the purpose intended. If they are suffered to go to decay and dilapidation, or by any unavoidable accident they are broken down .so as to allow domestic animals to pass over or through them, without obstruction, and are not repaired within a reasonable time, and especially if they are opened with or without the consent of the corporations or their agents, and are allowed to remain open for weeks or months, it cannot be said that they are maintained.
With this view of the construction of the statute, which, it seems to me, is the just and reasonable one, the casé is within the principle of Corwin v. The New York and Erie Rail Road Company, (3 Kern. 42,) and sustains the recovery and judgment therein.
*199[Monroe General Term,
March 3, 1862.
Besides, the same section of the act secures the corporations against liability for damages &c. after the fences and cattle-guards are duly made and maintained, only where the damages are not negligently or willfully done. If the damages are produced either by the negligence or willfulness of the corporation or its agents, the liability is the same as if there had been an entire omission to • make the fences and cattle-guards. Upon this ground, also, I think the recovery in the present case can be sustained ; as it cannot be doubted that to leave an opening in the fence through a cultivated farm, during the space of time the evidence shows was done here, was clear and palpa] le negligence, and in consequence whereof the plaintiff’s cattle were killed.
These views lead to the affirmance of the judgment.
Ordered accordingly.
Welles, H. Darwin Smith and Johnson, Justices.]