The plaintiff may not maintain his action, unless the statute law of the State is sufficient therefor. *156Though his beasts escaped from a well fenced field, without any actual carelessness on his part, when they came upon the defendant’s track they were trespassers there, and the defendant owed him no duty, save not to willfully or recklessly injure them. (Munger v. Tonawanda R. R. Co., 4 N. Y., 349.)

The statute law has modified that rule to some extent. By it, the defendant was bound to build and keep in good repair fences along the sides of the track, where necessary to prevent •cattle from getting on to it from adjoining lands, with openings, or gates or bars therein, for the use of the proprietor of the lands adjoining its track. (Gen. Railroad Acts, chap. 140, Laws of 1850, § 44, p. 233; Chap. 282, Laws of 1854, § 8, p. 611.) In this case the defendant chose, at this place, to put up a gate for the use of the proprietor. It is to be observed of this requirement of the statute, that the general and primary duty imposed, is to maintain fences along the sides of the track; and that the provision for openings, gates, ■or bars, is as an exception therefrom, or a permission in a-given case, to wit, for the use of a proprietor of adjoining lands. Ao exception is made, or permission given, for gates, etc., for the use of the railroad company, or its customers, or the public generally. Against every one but a proprietor of adjoining lands a fence must be kept up, or that which will serve the purpose of one, which a gate or bars will do when kept closed. (See 16 N. Y., 430, 476.) It has been held, in the Supreme Court, that if a fence is thrown down, or blown down, or pulled down by a trespasser, the railroad company not having notice thereof, is not liable because it does not at once put it up again, and that it has a reasonable time in which to repair it. (McDowell v. N. Y. Cent. R. R. Co., 37 Barb., 196.) And this seems to be a rational rule, and may be applied also to the case of a farm crossing-gate left open. So the inquiry here is, whether the gate in this case, had been so used, and for such length of time, and by the defendant, or with its sanction and invitation, as to warrant a finding by the jury that the defendant was- negligent of the duty imposed by the statute.

*157Any question of negligence in the plaintiff is out of the question, as matter of fact, for the jury were charged that if they found negligence on the part of the plaintiff then he was in fault and could not recover. The verdict for the plaintiff negatived any negligence in fact in him. If the defendant is brought within the provisions of the statutes by the facts of the case, then the law will not impute negligence to the plaintiff merely from the fact that his beasts have escaped from his well-fenced field. (See Corwin v. N. Y. and Erie Railway Co., 13 N. Y., 42, per Marvin and Denio, JJ.)

The verdict of the jury for the plaintiff, taken in connection with the charge, is tantamount to a finding that the defendant is responsible for the gate being left open on the night on which the injury was done. We think that there was evidence enough to sustain that verdict. It was in proof that for nine years before the first trial of this case, which would cover the time from the fall of 1864 to that of 1873, this gate had been used in the business of loading and unloading freight in or out of the cars of the defendant, in which, to some extent, the servants of the defendant had helped. The manner of the use of it was for the cars to be run down on the rails, near to this gate, and the vehicles leaving or taking goods would pass in or out through this gateway. ■ The result was that it was often left open at the end of the business day, and would be found open and be closed, sometimes at evening, and sometimes at midnight, by the servants of the company. The proof was uncontroverted that the plaintiff’s cattle got on to the track of the defendant, through this gateway, in the night, from the gate having been left unclosed at evening. Though the evidence does not positively show that on that night it was left open by a servant, or by a customer, of the defendant, or that any goods had been received or delivered that day at cars standing near it; yet from the long continued use of it for such purpose, and from the “very considerable extent ” of the business through it, and from the fact that Farrington, the adjoining proprietor, *158had not used it for six weeks before that time, and had no knowledge of the use of it that day for his purposes, the jury might well infer that it was open that evening, by reason of the use of it on that day, or some day shortly prior, by the customers of the defendant. Farrington was the only one authorized to use it, by himself or by his servants, without the permission of the defendant.

The defendant had notice that this gateway, first left for the convenience of one farmer at his farm crossing, had been diverted from the prime purpose of it, to a common passageway for its customers, because it was found to serve the daily mutual convenience of them and it. It also had notice that it was often left open in consequence thereof. It was bound to know, too, that, when opened at all, with its assent or acquiescence, it was in contravention of the statute requiring it to maintain a fence at that place, which was one of the sides of its road. If the permission to others than Farrington to open .and use it, followed by actual use and opening by them, was not of itself enough to charge the defendant under the statute, it was bound to see to it, that when the use of it for the day was over, it was well closed". It might not be liable if, without its knowledge, a panel of fence was torn down, until it had a reasonable time in which to put it up again. But if, for the common purpose of itself and its customers it, from time to time, permitted that panel to be removed, and had notice from time to time that it was not restored by them when the purpose was accomplished, it would be liable for an injury to the beasts of an innocent person, straying through the gap on to its track. For the duty is to maintain its fence in good repair, which means in such state and condition that it will turn orderly cattle, or of the height and strength of a division fence required by law, and if it takes part in or permits a removal of any part of the fence, which act, from the incidents of it, results to its knowledge or notice in the fence not being kept up, it .does not maintain it in that good repair. So it is with a gate at a farm crossing. It is permitted to put it there, for the convenience of the adjoining farmer, but *159as a part of its fence for all others; not for its own use, nor that of its customers. When it is put to its or their use, or made subservient to its business, it is not a farm gate pro tornto, but as a panel in the fence taken down by it or them, and, if left open, it is as a panel left fallen down. It is bound to keep that gate also in good repair, not simply in sound material condition, but in such state as is required for a division fence, or as will turn away cattle from its track. If it permits, invites and shares in, such a use of the gateway as, to its knowledge or notice, results in the gate not serving the end of a fence, it fails in its duty. In effect, the gate is then no longer merely a gate at a farm crossing, for the use alone of an adjoining proprietor, but it has become the fence of the defendant. When it has knowledge or notice that the gate is customarily left open, or when, from the manner of the use of it, has notice that such result is likely to happen, it is in statutory default if it does not see to the closing of it, when the use of it is over for the day or other shorter period.

The verdict of the jury was warranted by the fact and the law.

These views dispose of all the exceptions taken by the defendant at the trial. The motion for a nonsuit is shown by them to have been ill founded. The learned justice at circuit was right in holding that if the defendant had not performed the duty put upon it by the statute, a right of the plaintiff to recover arose therefrom, and that the negligence of the defendant in not keeping the gate closed at night was a failure to maintain and keep in good repair a fence at the side of its track, and not a negligence in the use of its property, such as renders it liable to one injured, by its act, in person or estate, only when he is without fault of his own.

The ruling of the learned justice on the motion for a non-suit, that contributory negligence of the plaintiff would not preclude him from a recovery in this case, if erroneous, was corrected when he charged the jury otherwise, and left it to them to find upon that question; and it was not erroneous for him to refuse a nonsuit, putting his refusal upon that ground, if there was other good reason to deny it.

*160It is apparent, too, from the views above expressed, that the court was not in error in refusing the three requests to charge.

■ The judgment should he affirmed.

All concur; Alley, J., taking no part; Rapallo, J., absent.

Judgment affirmed.