by warranty deed to William Drury, subject to the two mortgages, "both of which said incumbrances the party of the second part herein assumes and agrees to pay.' Each of the mortgages and deeds was duly recorded within a few days after its date. Drury, after receiving the conveyance to him, paid interest accruing on the notes secured by each mortgage. The testimony of Daggett, of Drury and of the broker who negotiated the sale between them, conclusively shows that the clause in this last deed, by which Daggett agreed to assume and pay the incumbrances, was inserted by mistake of the scrivener, without the knowledge and contrary to the intention and agreement of the parties. On July 12, 1877, as soon as the mistake was discovered, Daggett executed a deed of release to Drury, reciting the mistake and, therefore, releasing him from all liability, demand or right of action, arising from or out of that agreement. This release was recorded on July 18, 1877. About November 1, 1876, Annie E. Hayden, the appellee, purchased from Lockwood, for a valuable consideration, the two notes held by him and secured by the second mortgage. But she did not allege or offer any evidence tending to prove that, at the time of purchasing the notes, she knew of or relied upon the clause in the deed of April 12, 1876. Her original bill in [225] this case was filed on January 26, 1878, against the mortgagor, the trustees named in each mortgage and the successive purchasers of the equity of redemption, for a foreclosure of the second mortgage and a sale of the land, by reason of default in the payment of interest on her notes, and for a personal decree against Drury for the amount of any deficiency, in the proceeds of the sale, to pay her debt. After answer and replication, the case was referred to a master, who on February 6, 1880, reported that the sum due to her was $15,194.21. It was alleged in a supplemental bil filed on February 13, 1880, and was admitted in the answer thereto, that, pending this suit, the holder of the first mortgage had filed a bill and obtained a decree of foreclosure, under which the land had been sold and conveyed to the purchaser, and that the mortgagor was insolvent. The circuit court entered a final decree, in accordance with the prayer of Hayden's supplemental bill, for the payment by Drury of the sum reported by the master. See, Hayden v. Snow, 9 Biss., 511. From that decree, this appeal is taken. The case presented by the pleadings and [227] proofs appears to us a plain one. It is unnecessary, for the purpose of deciding it, to consider any of those questions, suggested at the argument, upon which there have been varying decisions in different States; such as, whether an agreement of the grantee, in a deed poll of land, to assume and pay an existing mortgage, is in the nature of an assumpsit, implied from the acceptance of the deed, or is in the nature of a covenant, being in an instrument sealed by the other party; whether a suit upon such an agreement must be brought by the grantor, from whom alone the consideration moves, or may be brought by the mortgagee, as a person to whose benefit the agreement inures; how far the mortgagee is entitled, by way of subrogation, to avail himself in equity of the rights of the grantor; and whether or not the mortgagee has any rights under such an agreement in a deed from one who is not himself personally liable to pay the mortgage debt. The appellee, by her purchase of the notes secured by the second mortgage, doubtless acquired all the rights of the mortgagee. Canal Co. v. Montgomery, 95 U. S., 16 [XXIV., 346]; Swift v. Smith, 102 U. S., 442 [XXVI., 193]. But having purchased in ignorance of the supposed agreement of Drury in the deed of conveyance from Daggett to him, and having done nothing upon the faith of that agreement, she has no greater right by estoppel against Drury than the mortgagee had. The mortgagee had no part in obtaining and paid no consideration for that agreement and, upon the most favorable construction, had no greater right under it than Daggett, with whom it purported to have been made. On the facts of this case, Daggett, in a court of equity at least, never had any right to enforce that agreement against Drury. The payment of interest on the mortgage notes would naturally be made by Drury to prevent a foreclosure of the mortgage on bis land, and cannot be held to be an affirmance of an agreement of which he had no actual knowledge. The clause containing the agreement being conclusively proved to have been inserted in the deed by mistake of the scrivener, without the knowledge and against the intention of the parties, a court of equity, upon a bill filed by Drury for the purpose, [228] would have decreed a reformation of the deed by striking out that clause. Elliott v. Sackett, 108 U. S., 133 [XXVII., 679]. The release ex ecuted by Daggett to Drury has the same effect, and no more. It follows that the appellee has no equity against the appellant, and the decree of the Circuit Court must be reversed and the case remanded, with directions to dismiss the bill. (See S. C., Reporter's ed., 228-242.) Duty of railroad company to erect fences-power of city council-evidence of negligence-excuse for non construction-proof of cause of injury. 1. An ordinance of a city granting to a railroad tracks, providing the company should erect fences company the right of way over public grounds for to secure persons and property from danger, is not merely a contract, but is also a municipal regulathe force of law within the limits of the city. tion, and if duly authorized by the Legislature has 2. A law of a State, conferring power upon a city council to require railroad companies to provide protection against injury to persons and property in the use of such railroads, confers authority upon the municipality to accomplish that purpose by such requirements as in its discretion it may preerection of a fence or other barrier between the scribe; and an ordinance of the city requiring the railroad tracks and the public highways and parks of the city is a reasonable provision, clearly within the limits of such authority. 3. Although in case of injury to persons by reason of the failure of the company to erect such fence, such default is not conclusive of the liability | of the company irrespective of negligence; yet, an action will lie for the personal injury, and this breach of duty will be evidence of negligence. 4. Although the ordinance prescribes that such fence is to be of such a height as the common council may direct, the failure of the common council to direct its height does not excuse the railroad company from the duty of its construction, 5. Although the want of a fence was not the efficient cause,causa causans, of the injury, yet if it was causa sine qua non, a cause which if it had not existed, the injury would not have taken place, the company is liable,and that is a question of fact; and the evidence of the circumstances, showing negligence on the part of the defendant which may have been the legal cause of the injury to the plaintiff, [No. 263.] should be submitted to the jury. Submitted Mar. 19, 1884. Decided Apr. 7,1884. IN ERROR to the Circuit Court of the United States for the Northern District of Illinois. The history and facts of the case appear in the opinion of the court. Messrs. A. D. Rich, George C. Frye and J. W. Merriam, for plaintiff in error: The Illinois Central Railroad Company should have erected and maintained a fence or other suitable works, to protect persons upon the park from danger. The omission to do so was gross negligence. Shear. & Redf. Neg., secs. 13, 54; Thomp. Neg. 1232; Ad. Torts, 49; Cooley, Torts, 658; Sedg. Dam., 564; State v. R. R. Čo., 52 N. H., 528; R. R. Co. v. Terhune, 50 Ill., 151; Austin v. R. R. Co, 11 Eng. L. & E., 513; Marcott v. R. R. Co., 49 Mich., 99; Mason v. Shawneetown, 77 Ill., 533. The Michigan Central Railroad Company is equally as liable as the Illinois Central Railroad Company. R. R. Co. v. Kanouse, 39 Ill., 272; R. R. Co. v. Rumbold, 40 Ill., 143; R. R. Co. v. Lane, 83 Ill., 448; R. R. Co. v. Barron, 5 Wall., 104 (72 U. S., XVIII., 594); R. R. Co v. Brown, 17 Wall., 445 (84 U. S. XXI., 675); Clement v. Canfield, 28 Vt., 302; Tracy v. R. R. Co., 38 N. Y., 433; Webb v. R. R. Co., 57 Me., 117; Chicago v. Fowler, 60 Ill., 322. R. R. Co. v. Gladmon, 15 Wall., 401 (82 U. S., XXI., 114); R. R. Co. v. Stout (supra); Mar cott v. R. R. Co., 47 Mich.,1; R. R. Co. v. Collarn, 73 Ind., 261; Park v. O'Brien, 23 Conn., 338; R. R. Co. v. Becker, 76 Ill., 33; State v. R. R. Co., 52 N. H., 528. Messrs Ashley Pond, Wirt Dexter and A. L. Osborne, for defendant in error: The defendant is not liable at common law for failure to fence the right of way. Co. v. Baugh, 14 Ill., 211; R. R. Co. v. Briggs, Vandergrift v. R. R. Co.,2 Houst., 287; R. R. 132 Mass., 24; Richmond v. R. R. Co., 18 Cal., 351; R. R. Co. v. Baber, 42 Ga., 300; R. R. Co. v. Patchin, 16 Ill., 198; R. R. Co. v. Recdy, 17 Ill., 581; R. R. Co. v. Harter, 38 Ind., 557; Henry v. R. R. Co., 2 Ia., 303; R. R. Co. v. Milton, 14 B. Mon., 75; Knight v. R. R. Co. 15 La. Awill 105; Perkins v. R. R. Co., 29 Me., 307; Williams v. R. R. Co., 2 Mich., 259; Locke v. R. R. Co., 15 Minn., 350; R. R. Co. v. Field, 46 Miss., 573; Gorman v. R. R. Co., 26 Mo., 441; Vandegrift v. Rediker, 22 N. J. L. (2 Zab.), 184; Chapin v. R. R. Co., 39 N. H., 53; R. R. Co. v. Munger, 5 Den,, 255; S. C., 4 N. Y., 349; Corwin v. R. R. Co., 13 N. Y., 42; Kerwhacher v. R. R. Co., 3 Ohio St., 185; Pa. R. Co. v. Riblet, 66 Pa. St., 164; Tower v. R. R. Co., 2 R. I., 404; R R. Co. v. Sineath, 8 Rich., 185; Hurd v. R. R. Co., 25 Vt., 123; Stucke v. R. R. Co., 9 Wis., 202. In Re Rensselaer, 4 Paige, 553, contra, has been discarded and practically overruled by the subsequent decisions in New York, cited above. Quimby v.R. R. Co., 23 Vt., 387, also contra, is followed as to the corporation involved in Trow v. R. R. Co., 24 Vt., 488, but the doctrine above set forth is fully recognized in the Hurd Case, 25 Vt., cited above. The defendant is not liable, under the ordinance above referred to in the declaration. The ordinance and agreement between the City of Chicago and the Illinois Central Railroad Company, create no liability other than a covenant. The obligations of the city and Railroad ComThe mere fact that plaintiff was upon a rail-pany lie in covenant. The transaction is beroad track, when injured, does not bar recovery. tween vendor and vendee. Redf. Rail., 546; R. R. Co. v. Stout, 17 Wall., 657 (84 U. S., XXI., 745); Keffe v. R. R. Co., 21 Minn., 207; Kay v. R. R. Co., 65 Pa. St. 272; Townley v. R. R. Co., 53 Wis., 626; R. R. Co. v. McGinnis, 71 Ill., 346; Loomis v. Terry, 17 Wend., 497. The want of the fence was the proximate cause of the injury. R. R. Co. v. Kellogg, 94 U. S., 469 (XXIV., 256); R. R. Co. v. Fielding, 48 Pa. St., 320; R. R. Co, v. Mahoney, 57 Pa. St., 187; Salisbury v. Herchenroder, 106 Mass., 458; Schmidt v. R. R, Co., 22 Wis., 186; Birge v. Gardiner, 19 Conn., 507; Brown v. R. R. Co., 50 Mo., 461. The proximate cause of the injury to the plaintiff is a question for the jury. R. R. Co. v. Stout, 17 Wall., 663 (84 U. S., XXI.,749); R. R. Go. v. Kellogg (supra); Manchester v. Ericsson, 105 U. S., 347 (XXVI., 1099); Fairbanks v. Kerr, 70 Pa. St., 86; McGrew v. Stone, 53 Pa. St., 436; Trow v. R. R. Co., 24 Vt., 488; Lake v. Milliken, 62 Me., 240; R. R. Co. v. Pindar, 53 Ill., 447; Perley v. R. R. Co., 98 Mass., 414; Kellogg v. R. R. Co., 26 Wis., 233. Negligence is a question for the jury. The Illinois Central may be liable to the city for a breach, but the ordinance and agreement cannot be the basis of liability to a citizen. Atkinson v. Water Works Co.,3 Exch. Div.,441. No default is shown in the performance of the conditions of the ordinance and agreement. Action by the city was prerequisite to performance by the Company. Some direction by the council, as to the height of the structure, was a condition precedent to the obligation of the Company to erect it. Lent v. Padelford, note, 2 Am. Lead. Cas., 65; Center v. Center, 38 N. H., 318; Watson v. Walker, 23 N. H., 471; Bashford v. Shaw, 4 Ohio St., 263; Walker v. Forbes, 25 Ala., 139; Vyse v. Wakefield, 6 Mees. & W., 442; S. C., 7 Mees. & W., 126; West v. Newton, 1 Duer, 284; Coombe v. Greene, 11 Mees. & W., 480; Brooklyn v. R. R. Co., 47 N. Y., 475. A failure to perform the terms of the ordinance and agreement between the City of Chicago and the Illinois Central Railroad Company, would give no rights except inter partes. Strangers to the contract could not benefit by it. Lowery v. Brooklyn City R. Co., 76 N. Y., 28. | cil may direct, and no change therein shall be The ordinance, dissociated from the agree- made except by mutual consent; Provided, howment between the city and Company, cannot create a civil liability, enforceable at common law. It was ultra vires the Corporation to give it such effect. The power of the Legislature is plenary to compel action on the part of the citizen, and inaction may be unlawful and remediable civilly, but a municipality cannot, by ordinance, create a civil duty. Van Dyke v. Cincinnati, 1 Disn., 532; R. R. Co. v. Ervin, 89 Pa. St., 71; Heeney v. Sprague, 11 R. I., 456; Flynn v. Canton Co., 40 Md., 312. Mr. Justice Matthews delivered the opinion of the court: This action was brought by the plaintiff in error, to recover damages for personal injuries alleged to have been caused by the negligence of the defendant in error. After the evidence in the cause had been closed, the court directed the jury to return a verdict for the defendant. A bill of exceptions, to that ruling, embodies all the circumstances material to the case, and presents the question, upon this writ of error, whether there was sufficient evidence to entitle the plaintiff below to have the issues submitted to the determination of the jury. The defendant, in running its trains into Chicago, used the tracks of the Illinois Central Railroad Company, under an arrangement between them; and no question is made but that the defendant is to be treated, for the purposes of this case, as the owner as well as occupier of the tracks. The tracks in question are situated for a considerable distance in Chicago, including the place where the injury complained of was received, on the lake shore. They were built, in fact, at first, in the water on piles; a breakwater, constructed in the lake, protecting them from winds and waves, and on the west or land side, the space being filled in with earth, a width of about 280 feet, to Michigan Avenue, running parallel with the railroad. This space between Michigan Avenue and the railroad tracks is public ground, called Lake Park, on the south end of which is Park Row, a street perpendicular to Michigan Avenue and leading to and across the railroad tracks to the water's edge. Numerous streets, from 12th Street north to Randolph Street, intersect Michigan Avenue at right angles, about 400 feet apart, and open upon the park, but do not cross it. Nothing divides Michigan Avenue from the park, and the two together form one open space to the railroad. The right of way for these tracks was granted to the Company by the City of Chicago over public grounds by an ordinance of the common council, dated June 14, 1852, the 6th section of which is as follows: "Sec. 6. The said Company shall erect and maintain on the western or inner line of the ground pointed out for its main track on the lake shore, as the same is herein before defined, such suitable walls, fences or other sufficient [230] works as will prevent animals from straying upon or obstructing its tracks and secure persons and property from danger, said structure to be of suitable materials and sightly appearance, and of such height as the common coun ever, That the Company shall construct such suitable gates at proper places, at the ends of the streets which are now or may hereafter be laid out, as may be required by the common council, to afford safe access to the lake; And provided, also, That, in case of the construction of an outside harbor, streets may be laid out to approach the same, in the manner provided by law, in which case the common council may regulate the speed of locomotives and trains across them.' It was also provided in the ordinance, that it should be accepted by the Railroad Company within ninety days from its passage, and that thereupon a contract under seal should be formally executed on both parts, embodying the provisions of the ordinance and stipulating that the permission, rights and privileges thereby conferred upon the Company should depend upon their performance of its requirements. This contract was duly executed and delivered March 28, 1853. The work of filling in the open space between the railroad tracks and the natural shore line was done gradually, more rapidly after the great fire of October 9, 1871, when the space was used for the deposit of the débris and ruins of buildings, and the work was completed substantially in the winter of 1877--8. In the meantime several railroad tracks had been constructed by the Railroad Company on its right of way, used by itself and four other companies for five years prior to the time of the injury complained of, and trains and locomotives were passing very frequently, almost constantly. The Railroad Company had also partially filled with stones and earth the space east of its tracks, to the breakwater, sufficiently so in some places to enable people to get out to it. This they were accustomed to do, for the purpose of fishing and other amusements, crossing the tracks for that purpose. At one point there was a roadway across the park and the tracks, used [231] by wagons for hauling materials for filling up the space, and a flagman was stationed there. At this point great numbers of people crossed to the breakwater; from two streets, the public were also accustomed to cross over the tracks from the park to ferry-boats. From Park Row, at the south end of the park, running north a short distance, the Railroad Company, in 1872, had erected on the west line of its right of way a five board fence, the north end of which at the time of the injury to the plaintiff was broken down. The rest of it was in good order. The park was public ground, free to all and frequented by children and others as a place of resort for recreation, especially on Sundays. Not far from the south end and about opposite the end of the fence, was a band house for free open air concerts. The plaintiff was a boy between eight and nine years of age, bright and well grown, but deaf and dumb. His parents were laboring people, living, at the time of the accident, about four blocks west of Lake Park. Across the street from where they lived was a vacant lot where children in the neighborhood frequently played. On Sunday afternoon, March 17, 1878, St. Patrick's Day, the plaintiff, in charge of a and across railroad tracks in the use of an ordibrother about two years older, went to this va-nary highway. "These cases," said the Sucant lot, with the permission of his father, to preme Court of Massachusetts in Eaton v. R. R. play; while playing there a procession celebrat- Co., 129 Mass., 364, "all rest on the common ing the day passed by, and the plaintiff, with law rule that when there are different public other boys, but without the observation of his easements to be enjoyed by two parties at the brother, followed the procession to Michigan same time and in the same place, each must use Avenue at 12th Street, just south of Lake Park; his privilege with due care, so as not to injure he and his companions then returned north to the other. The rule applies to grade crossings, the park, in which they stopped to play; a wit- because the traveler and the railroad each has ness, going north along and on the west side of common rights in the highway at those points. the tracks, when at a point a considerable dis- The fact that the Legislature has seen fit, for tance north of the end of the broken fence, saw the additional safety of travelers, imperatively a freight train of the defendant coming north; to require the corporation to give certain warnturning round towards it he saw the plaintiff on ings at such crossings, does not relieve it from the tracks south of him, but north of the end of the duty of doing whatever else may be reasonthe fence; he also saw a colored boy on the lad-ably necessary." It was accordingly held in der on the side of one of the cars of the train that case, that the jury might properly consider, motioning as if he wanted the plaintiff to come whether, under all the circumstances, the dealong; the plaintiff started to run north beside fendant was guilty of negligence in not having the train, and as he did so, turned and fell, one a gate or a flagman at the crossing, although not or more wheels of the car passing over his arm. expressly required to do so by any statute or [232]There were four tracks at this point, and the public authority invested with discretionary train was on the third track from the park. The powers to establish such regulations. plaintiff had his hands reached out towards the car, as he ran, as if he was reaching after it, and seemed to the witness to be drawn around by the draft of the train, and fall on his back. Ainputation of the left arm at the shoulder was rendered necessary, and constituted the injury for which damages were claimed in this suit. The question of contributory negligence does not appear to us to arise upon this record. It is not contended by the counsel for the defendant in error, that, if there was evidence tending to prove negligence on its part, the case could properly have been withdrawn from the jury on the ground that it appeared as matter of law that the plaintiff was not entitled to recover by reason of his own contributory negli- | gence. The single question, therefore, for present decision is, whether there was evidence of negligence on the part of the defendant which should have been submitted to the jury. The particular negligence charged in the declaration and relied on in argument, is the omission of the Railroad Company to build a fence on the west line of its right of way, dividing it from Lake Park; a duty, it is alleged, imposed upon it by the ordinance of June 14, 1852, a breach of which, resulting in his injury, confers on the plaintiff a right of action for damages. And the same principle has been applied in other cases, than those of the actual coincidence, at crossings of public highways. In Barnes v. Ward, 9 C. B., 392, it was decided, after much consideration, that the proprietor and occupier of land making an excavation, on his own land but adjoining a public highway, rendering the way unsafe to those who used it with ordinary care, was guilty of a public nuisance, even though the danger consisted in the risk of accidentally deviating from the road, and liable [236] to an action for damages to one injured by reason thereof; for the danger thus created may reasonably deter prudent persons from using the way, and thus the full enjoyment of it by the public is, in effect, as much impeded as in the case of an ordinary nuisance to a highway. This doctrine has always since been recognized in England. Hardcastle v. South Yorkshire R. Co., 4 Hurl. & N., 67; Hounsell v. Smyth, 7 C. B. (N. S.), 731; Binks v. South Yorkshire R. Co., 3 B. & S., 244. It has also been generally adopted in this country; Norwich v. Breed, 30 Conn., 535; Beck v. Carter, 68 N. Y., 283; Homan v. Stanley, 66 Pa. St., 464; R. R. Co. v. Boteler, 38 Md., 568; Stratton v. Staples, 59 Me., 94; Young v. Harvey, 16 Ind.,314; Coggswell v. Lexington, 4 Cush., 307; although Howland v. Vincent, 10 Met., 371, is an exception. It is not claimed on the part of the plaintiff in error that the Railroad Company was under an obligation, at common law, to fence its tracks The enforcement of this rule in regard to exgenerally, but that, at common law, the ques-cavations made by proprietors of lots adjacent tion is always whether, under the circumstances to streets and public grounds in cities and towns of the particular case, the railroad has been con- in the prosecution of building enterprises and structed or operated with such reasonable pre- in the construction of permanent areas for cel[235] cautions for the safety of others, not in fault, as lar ways, is universally recognized as an obviis required by the maxim, Sic utere tuo, ut non ous and salutary exercise of the common police alienum lædas; that, consequently, in circum- powers of municipal government; and the omis stances where the public safety requires such sion to provide barriers and signals, prescribed a precaution as a fence, to prevent danger by ordinance in such cases for the safety of from the ordinary operations of the railroad, to individuals in the use of thoroughfares, is a strangers not themselves in fault, the omission failure of duty, charged with all the conseof it is negligence, and that it is a question of fact quences of negligence, including that of liabilfor a jury, whether the circumstances exist ity for personal injuries, of which it is the rewhich create such a duty. sponsible cause. The true test is, as said by Hoar, J., in Alger v. Lowell, 3 Allen, 402, "Not whether the dangerous place is outside of the way, or whether some small slip of ground not included in the way must be traversed in reach This principle has been recognized and applied in cases of collisions at crossings of railroads and public highways, when injuries have occurred to persons necessarily passing upon | be liable for all damages, the owner of any cat- ing the danger, but whether there is such a risk | fail to comply with any such ordinance, it shall of a traveler, using ordinary care in passing along the street, being thrown or falling into the dangerous place, that a railing is requisite to make the way itself safe and convenient." As the ground of liability in these cases is that of a public nuisance, causing special injury, the rule, of course, does not apply where the structure complained of on the defendant's property, and the mode of its use, are authorized by [237] law; and, consequently, what has been said, is not supposed to bear directly and strictly on the question in the present case, but rather as inducement, showing the ground of legislative authority implied in the ordinance, the breach of which is imputed to the defendant as negligence towards the plaintiff, and as serving to interpret the meaning and application of its provisions. The ordinance cannot, we think, be treated as a mere contract between the city, as proprietor of the land over which the right of way is granted, and the Railroad Company, to which no one else is privy and under which no third person can derive immediately any private right, prescribing conditions of the grant, to be enforced only by the city itself. Although it takes the form of a contract, provides for its acceptance and contemplates a written agreement in execution of it, it is also and primarily a municipal regulation, and as such, being duly authorized by the legislative power of the State, has the force of law within the limits of the city. Mason v. Shawneetown, 77 Ill., 533. [238] Neither can the ordinance be limited by construction to the mere purpose of preventing animals from straying upon or obstructing the railroad tracks; because, in addition to that, it expressly declares that the walls, fences or other works required shall be suitable and sufficient to secure persons and property from danger. This cannot refer to persons and property in course of transportation and already in care of the Railroad Company as common carrier, for the duty to carry and deliver them safely was already and otherwise provided for by law; nor can it be supposed, from the nature of the case, that the stipulation was intended as security for any corporate interest of the city. The proviso in the 6th section, that the Company shall construct such suitable gates at crossings as thereafter might be required by the common council to afford safe access to the lake, clearly designates the inhabitants of the city as at least within the scope of this foresight and care, the safety of whose persons and property was in contemplation. The prevention of animals from straying upon the tracks, and the security of persons and property from danger, are two distinct objects, for both which the requirement is made of suitable walls, fences or other protections; and the ordinance, in these two particulars, is to be referred to distinct legislative grants of power to the municipal body. The general Act to provide for the incorporation of cities and villages, which constitutes the charter of the City of Chicago, confers upon its city council power; Twenty-sixth. To require railroad companies to fence their respective railroads or any portion of the same and to construct catile guards, crossings of streets and public roads and keep the same in repair within the limits of the corporation. In case any railroad company shall Whether this provision is limited to the protection of animals and covers only the case of damage done to them, or whether a failure to comply with the ordinance authorized thereby, might be considered as evidence of negligence, in case of injury to person or property, in any other case, it is not necessary for us now to decide; for in the same section of the statute there is this additional power conferred upon the city council: "Twenty-seventh. To require railroad companies to keep flagmen at railroad crossings of streets, and provide protection against injury to persons and property in the use of such railroads," etc. The latter clause of this provision is general and unrestricted. It confers plenary power over railroads within the corporate limits, in order that by such requirement as in its discretion it may prescribe, and as are within the just limits of police regulation, the municipal authority may provide protection against injury to persons and property likely to arise from the use of railroads. And as we have shown by refercnce to analogous cases, the erection of a barrier between the railroad tracks and the public highways and grounds, particularly such a resort as the Lake Park is shown to be, in the present case, is a reasonable provision, clearly within the limits of such authority. To leave the space between the park and the break water, traversed by the numerous tracks of the Railroad Company, open and free, under the circumstances in proof, was a constant invitation to crowds of men, women and children frequenting the park to push across the tracks at all points to the breakwater, for recreation and amusement, at the risk of being run down by constantly passing trains. A fence upon the line between them might have served, at least, as notice and signal of danger, if not as an obstacle and prevention. For young children, for whose health and recreation, the park is presumably in part intended, and as irresponsible in many cases as the dumb cattle, for whom a fence is admitted to be some protection, such an impediment to straying might prove of value and importance. The object to be attained, the security of the persons of the people of the city, was, we think, clearly within the design of the statute and the ordinance; and the means required by the latter to be adopted by the Railroad Company was appropriate and legitimate. Mayor v. Williams, 15 N. Y. 502. It it said, however, that it does not follow that whenever a statutory duty is created, any person, who can show that he has sustained injuries from the non-performance of that duty, can maintain an action for damages against the [239] |