The opinion
By the Court, C. L. Allen, J.
The first point raised by the counsel for the appellant is that the plaintiff failed to show the defendants to be the owners of the road upon which the injury happened. The act incorporating the defendants, (Laws of 1832, ch. 131,) terminated their road at Ballston; and it would seem from this, that the injury, if occasioned by want of cattle-guards or fences, was properly chargeable to the Saratoga and Schenectady Railroad Company, on whose road it happened. The 44th section of chapter 140, of laws of 1850, requires every corporation formed under the act, to erect and maintain fences on the sides of their road, and to construct and maintain cattle-guards at all road crossings, suitable and sufficient to prevent cattle and animals from getting on to the railroad. This duty was imposed, in this case, upon the Saratoga and Schenectady Railroad Company. And the same section makes them liable for such neglect; for all damages which shall be done, by their agents or engines, to cattle, horses or other animals thereon. The proof was uncertain, whether the locomotive was one belonging to the defendants, or to the Saratoga and Schenectady Railroad Company. But the engineer running it testified that he was in the employ of the Saratoga and Schenectady Railroad Company, at the time. There was evidence tending to show that the engine and train belonged to the defendants; and probably this was a question of fact for the jury, who came to the conclusion that they .belonged to the defendants, and based then’ verdict upon *318 that fact. But by the acts of 1839, (chap. 218) and 1847, (chap. 222) cars of one road may run over the road of another company. And the evidence clearly showing that the road did not belong to the defendants, it appears to me that no liability was shown, in them, to erect either cattle-guards or fences, and that no willful or gross negligence having been proved or pretended, by the defendants’ agents in running the cars, the plaintiff was not entitled to recover.
But suppose I am in an error in arriving at this conclusion, the next question that arises is, whether the defendants were required to erect cattle-guards in the streets of the village of Saratoga Springs. The 39th section of the general railroad a.ct (Laws of 1850, ch. 140,) requires the bell to be kept ringing until the locomotive shall have crossed any traveled public road or street. The 40th section requires boards to be maintained across each traveled public road or street, containing the words “ B-ailroad crossing. Look out for the cars.” But it expressly declares that the section shall not apply to streets in cities or villages, unless the corporation shall be required to put up such boards by the officers having charge of such streets ; and then comes the 44th section, before quoted, requiring the company to “ construct and maintain cattle-guards at all road crossings.” This question has been decided in this court in Vanderkar v. The Rensselaer and Saratoga Railroad Com pany, ( 13 Barb. 390 .) It is there remarked that the sections in relation to ringing bells and putting up boards, require those acts to be done at the crossing of roads or streets, but that the requirement as to the construction of cattle-guards is on road crossings; the statute obviously making a distinction between roads and streets; and that cattle-guards in the streets of a city or village would be nuisances. The injury in the present case occurred in a street of the village of Saratoga Springs; there were houses on one side of it, and the company had no power to shut up access to them, or to construct a nuisance upon the road. I think the case just cited controls the decision here.
It is said the defendants ought at all events to have erected fences, and that the cow, in consequence of the want of fences, *319 was frightened on to the road. But the difficulty on this point is that the complaint does not allege the injury to have occurred for want of fences. The only allegation is that it was occasioned by the neglect to construct cattle-guards, alone, and the whole negligence complained of is placed upon that sole ground. Without considering the other questions presented, I think the judgment of the justice should be reversed.
[Clinton General Term,
July 4, 1853.
Hand, Cady and C. L. Allen, Justices.]
Judgment reversed.