13 N.Y. 42 (1855)
This case illustrates how a common law rule relating to wandering domestic animals was found to be inadequate in a time when railroad transportation had, in the words of Judge Francis Bergan, “brought profound changes in personal mobility, the transportation of goods, the development of industry and social life, as well as in the law in America and Europe about the same time.” Professor Howard Schweber noted that the Court’s analysis in this case constituted “a full-fledged articulation of modern American common law principles.”
According to the facts of the case, Mr. Corwin owned of a pair of oxen that wandered onto the track of the New York and Erie Railroad Company in the town of Sandford, Broome County, in May 1851. One of the oxen was struck by a train engine and severely injured. In October of that year, both of the oxen were on the same stretch of railroad track when an engine and train passed and killed one of the oxen and severely injured the other. The land on either side of the track belonged to Uriah Gregory, who had deeded a right of way to the railroad company with a covenant that the railroad would install and maintain fencing along the track and cattle guards at the road crossings. The railroad company had not done so.
Corwin brought an action against the railroad company in the New York Supreme Court, Broome County, to recover the value of the oxen. The issue was referred to a referee, Robert Morrell, Esq., who decided as matter of law that the railroad company was liable for the damage sustained by Mr. Corwin, which he assessed at $119.62, and he ordered judgment for this sum with costs. The railroad company appealed, and the Supreme Court reversed and ordered judgment against Corwin for the costs of the action. Corwin appealed to the New York Court of Appeals where he was represented by D. S. Dickinson. The railroad company was represented by Nicholas Hill, Jr.
Writing for the Court, Judge Richard P. Marvin stated that the issue before the Court was of great practical importance and required the Court to construe §44 of the General Railroad Act of 1850 (Laws of 1850, ch 233), which provided:
Every corporation formed under this act shall erect and maintain fences on the sides of their road, of the height and strength of a division fence required by law, with openings or gates or bars therein, and farm crossings of the road for the use of the proprietors of lands adjoining such railroad; and also construct and maintain cattle guards at all road crossings, suitable and sufficient to prevent cattle and animals from getting on to the railroad. 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 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.
Judge Marvin then noted:
As we have seen at common law, the owner of cattle must keep them upon his own premises; and we have also seen, that if he did not, they were trespassers and he was guilty of negligence; and when his negligence contributed to their injury, he could not recover for an injury on the ground of negligence in the defendant. Were these principles proper and sufficient when applied to the new circumstances and condition of things arising out of the general introduction and use of railroads in the country? They may have been entirely satisfactory and sufficiently protective under the old order of things. But a new state of things has arisen: a power, but recently discovered and applied to the uses of man, has been appropriated as a motive power to the moving of large and heavy bodies at a velocity before unknown, acquiring a momentum and speed endangering the lives of all animals coming in contact with the moving mass, whether locomotive or cars, and at the same time putting in jeopardy the lives and limbs of all those who are connected with the train. The danger to passengers, as science will demonstrate and as experience has shown, is great and imminent whenever the locomotive or cars in their rapid movement come in collision with any substance disturbing the regularity of the motion or speed acquired. An ox, cow or horse upon the track presents a substance sufficient, often to throw the engine and cars from the track, and thus cause a general wreck in which many lives are lost and limbs broken.
In a concurring opinion, Judge Hiram Denio wrote:
When we consider that these tracks are incessantly traversed by engines, driven at a great speed, and with a force practically irresistible, and that an intrusion thereon is very likely to result in the destruction of the intruder, and in loss of life to those who are traveling upon the road, we cannot but see that the legislature had something further in view than the pecuniary burden of maintaining fences between adjoining proprietors of land. The injunction upon the railroad corporations, to construct and maintain the fences and cattle guards, is positive and unqualified, and it is obvious that the whole community has a deep interest in its observance.
Thus, the Court of Appeals determined that the common law rule was inadequate in a time of great technical innovation, reversed the judgment of the Supreme Court, and affirmed the judgment directed by the referee.
Francis Bergan. The History of the New York Court of Appeals, 1847-1932 (1985)
Howard Schweber. The Creation of American Common Law, 1850–1880: Technology, Politics, and the Construction of Citizenship (2004)