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Murray v. New York Central R. R. Co.

tion to be put upon sections 55 and 56 of the general railroad act as amended in 1854. Sections 55 and 56 of this act make it the duty of railroads to erect and maintain fences on the sides of their roads, with openings and gates or bars therein, and for the omission to erect and maintain the same, the statute declares that they shall be liable for all damages which shall be done by their agents or engines, to cattle, horses, &c., thereon.

Section 56 employs language which, at first view, seems to favor the construction, that, when the fences are out of repair, the railroad company shall be absolutely liable, without any reference to the question of their negligence in making the repairs. The language of the section in this respect is: That, so long as such fences shall not be made, and when not in good repair, such railroad corporation shall be liable for damages which shall be done by the agents or engines of such corporation to cattle, horses, &c., thereon." L. 1851, p. 611, and Same Stat. 2 R. S. 5 ed. 689, 190, SS 55, 56.

This expression," when not in good repair,can scarcely mean what the literal language would imply. Such a construction would exclude every consideration of negligence from its contemplation, and would render these corporations liable in every conceivable case where their fences were not, at the time of the injury, in proper repair.

A tortseasor in the night-time throws down the fence, and the owner's cattle escape from his fields upon the railroad track the same night, and are killed, and the railroad is held liable. The act of God, manifest in the hurricane, sweeps down miles of the railroad fence, and before it can be put up the farmers' cattle along the line of the road escape upon the railroad and are killed, and still, the railroad company is liable, under a literal reading of this statute. They would, in short, be liable in all cases where the road is not in repair, whether caused by tempest, by flood, or by the wrongful acts of third persons, althongh there had been no opportunity to repair. Such a construction of this act should never be indulged.

A stronger exemplification of the maxim “the letter killetli, while the spirit keepeth alive," can scarcely be presented, than is afforded in this statute. The duty is intended to be im

Murray o. New York Central R. R. Co.

posed upon these corporations to erect and keep in repair fences at the sides of their road. This is the object and design of the act, and to enforce this duty, the penalty in damages is imposcd, that they shall pay for all cattle, horses, &c., killed or injured by their agents or engines upon their road, no matter how free from all negligence they may have been in causing the injury.

This duty to keep in repair, requires vigilance to ascertain defects, and the energetic application of the means necessary to make the repairs as soon as the defects are ascertained. Every statute is presumed to have a reasonable intendment; and I cannot bring my mind to impute to the legislature sɔ anjust and unreasonable an intent in the statute under consideration as the plaintiff's case invokes. It is unreasonable to suppose the legislature intended to render these corporations liable to so severe penalties where they had performed their whole duty in regard to repairs, and such, I am satisfied, was never the intention of the legislature in making this enactment. The letter of this statute, upon the most familiar rules of construction, must yield to this spirit where the legislative intent is so manifest. Such is the construction which must be put upon this statute. Munch v. New York Central R. R. Co., 29 Barb. 647; Poler v. N. Y. Central R. R. Co., 16 N. Y. 476.

It is proper to remark in this connection, that this clause of the statute relied upon by the plaintiff as a positive enactment, rendering these corporations liable where such fences shall not be in good repair, has the word “gates” left out, while it is used in the former part of the act. This may have been by design, as they are for the use of the farmers at the farm crossings, and they should reasonably be charged with some care of them while they are constantly using them.

There being no negligence imputable to the defendants in the act of killing this colt, the inquiry remains whether there was sufficient evidence of the defendants' negligence in not repairing this gate to justify the submission of that question to the jury. I do not think there was. The fact that some laborers in the employ of the defendants passed over the rail. road at this point after the gate was loosed from the hinges,

Murray o. New York Central R. R. Co.

should not be held as justifying a finding of notice of this defect in the gate to the defendants. I infer that these men were common laborers, and if they did discover the defect, it would not be held a notice to the defendants; but for aught that appeurs, the gate may have been up and fastened in its proper position at the time they passed. As only four days had elapsed since the gate was out of repair, and as it had generally been kept up during these four days, and in its proper position, and fastened with a chain and padlock, I do not think there was sufficient to send the case to the jury upon the defendants' negligence in not repairing this gate.

There is also strong evidence upon which to charge the plaintiff's bailee (Scott) with negligence, that contributed to this injury, and if so, the plaintiff could not recover. I prefer, however, to place the case upon the former ground of a failure of proof to show negligence in the defendants. The judge should have nonsuited the plaintiff, and it follows that the judgment must be reversed, and a new trial granted, costs to abide the event of the action.

WOODRUFF, J., also cited Poler v. N. Y. Central R. R. Co., 16 N. Y. 481, as showing that it was the tenant's duty to have made reasonable effort to notify the company of the defect. The statute does not make the company insurers, in respect of the fences; but their liability is a question of neglect of duty, and in the case of a casual defect, either notice to the company, lapse of time, or other circumstances from which negligence could be inferred, must be shown.

A majority of the judges concurred.

Judgment reversed, and new trial ordered, costs to abide event.

Mutual Benefit Life Assurance Co. v. Supervisors of New York.

MUTUAL BENEFIT LIFE ASSURANCE COMPANY

v. SUPERVISORS OF NEW YORK.

December, 1866.

Affirming 8 Bosw. 683; also 33 Barb. 322 ; 8. C., 20 Pow. Pr. 416.

An action for an injunction will not lie to restrain the collection of a tax

upon an illegal assessment, where there is a remedy to review and correct the assessment by certiorari, or to strike it from the roll by mandamus.*

The plaintiffs brought two actions against the board of supervisors of the city and county of New York, one in the New York superior court, and the other in the supreme court. The object of the actions was to enjoin the defendants from collecting a tax on the plaintiffs in respect to the sum of one hundred thousand dollars, which they had lodged with the comptroller of the State of New York, in securities, pursuant to the insurance law, as a condition of their doing business in this State.

The superior and supreme courts gave judgment for defendants in each case, dismissing the complaint, with costs, and these judgments were affirmed respectively on appeals taken to the general term in each court. The plaintiffs appealed to this court.

A. C. Bradley, for plaintiffs, appellants ;-Cited L. 1853, p. 893, SS 15, 6, 17; International 'Life Ass. Co. v. Com. Taxes, 28 Barb. 318; S. C., 17 How. Pr. 206; British Commercial Life Ins. Co. v. The Same, 28 Id. 41;t Statute 1849, p. 441, 87; Act 1853, 88 14, 15; People v. New England Mut. Life Ins. Co., 26 N. Y. 303; Code, SS 372, 114, 148; People v. Works, 7 Wend. 486 ;People v. Tompkins, G. S., 19 Id. 154; Exp. Braudlacht, 2 Hill, 367; People v. Seward, ? Wend: 518; Exp. Gordon, 2 Hill, 363; People v. Supervisors, 1 Id. 195; Code,

* Compare Howell v. City of Buffalo, vol. 2 of this series, p. 412; and Lathrop v. The Same, 3 Id. p. 30, and cases cited.

+ See report in vol. 1, p. 199 of this series. | Overruled, as to prohibition, in Hill, 195.

Mutual Benefit Life Assurance Co. o. Supervisors of New York.

S$ 129, 142, subd. 3, 246, subd. 2, 278, 275; VoorhiesCode, note to same section; Code, 88 248, 252, 144, 149, 269, 246; Cowenhoven v. City of Brooklyn, 38 Barb. 9; N. Y. Ice Co. 9. N. Western Ins. Co., 23 N. Y. 357; Wright v. Hooker, 10 Id. 51; Byxbie v. Wood, 24 Id. 607; Barlow v. Scott, Id. 40; Redmond v. Dana, 3 Bosw. 616; Heywood v. City of Buffalo, 14 N. Y. (4 Kern.) 534.

R. O'Gorman, counsel to corporation.

A. R. Lawrence, Jr., for defendants, respondents ;—Cited N. Y. Life Ins. Co. v. Supervisors of N. Y., 4 Duer, 192; Heywood v. City of Buffalo, 14 N. Y. (4 Rern.) 534, 541 ; Wilson v. Mayor, &c. of N. Y., 1 Abb. Pr. 4; S. C., 4 E. D. Smith, 675; Chemical Bank v. Mayor, &c. of N. Y., 1 Id. 79; Mooers v. Smedley, 6 Johns. Ch, 28; Mayor, &c. of Brooklyn v. Meserole, 26 Wend. 132; Wiggin v. Mayor, &c. of N. Y., 9 Paige, 16, 24; Van Doren v. Mayor, &c. of N. Y., ld. 388; Livingston v. Hollenbeck, 4 Barb. 9, 10; S. C., 3 Huw. Pr. 343; Van Rensselaer v. Kidd, la. 17; Bouton v. Brooklyn, 7 How. Pr. 205 ; Douglas v. Mayor, &c. of N. Y., 2 Duer, 110; Mut. Benefit, &c. Ins. Co. v. Supervisors of N. Y., 33 Barb. 322; S. C., 20 How. Pr. 416 ;* Same v. Same, 8 Bosw. 683 ;* Storm v. Odell, 2 Wend. 287; Caledonian Co. v. Trustees, &c., 7 Id. 508; People v. Mayor, éc. of Brooklyn, 9 Barb. 535;t People v. Works, 7 Wend. 486; People v. Albany, 12 Johns. 414; E.cp. Nelson, 1 Cow. 417; Hull v. Oneida, 19 Johns. 260; Bright v. Chenango, 18 Id. 242; People v. Mayor, &c. of N. Y., 10 Wend. 393; Bank of Utica v. City of Utica, 4 Paige, 400; People v. N. Y., 18 Wend. 605; People v. Watertown, 1 Hill, 616; People v. Niagara, 4 ld. 20;f Adriance v. Supervisors of N. Y., 12 lIow. Pr. 224; Mygatt v. Washburn, 15 N. Y. 316; Saunders v. Springsteen, 4 Wend. 429; Ontario Bank v. Bunnell, 10 Id. 186; Weaver v.

* Affirmed in 2 Abb. Pr. N. S. 233; S. C., 3 Keyes, 182 ; 32 How. Pr. 359

+ Overruled, in 7 N. Y. (3 Seld.) 314. | Affirmed, in 7 Id. 504.

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