Carpenter, J.
This is an action against the borough of Danbury and the New York & New England Railroad Company to recover damages for injuries received by coming in collision with a railroad bridge over the highway. There was a hearing in damages upon default, and judgment against the borough for actual damages and against the railroad company for nominal damages only. The borough and the plaintiff appealed.
Each appeal presents this questionIs the railroad company liable for actual damages?
The material facts are briefly these: In 1880 the railroad company constructed a bridge over West street, in the borough of Danbury, for the purpose of carrying the railroad over the street. The plaintiff was guilty of no contributory negligence. It is expressly found that the railroad company was guilty of no negligence. The bridge was built “ upon plans or directions furnished or approved by the borough,” and was put at such height above the street as the borough required. When first built the vertical space between the bridge and the road-bed was ten feet six inches; when the accident happened it was nine feet and four inches. The difference, fourteen inches, was caused by raising the road-bed from year to year, partly from natural causes and partly from placing gravel thereon by those repairing the street. Therein the court found the borough guilty of negligence. The finding is conclusive in favor of the railroad company, unless the court can see as a conclusion of law from the facts stated that the company was negligent. The supposed negligence consists either in a faulty construction of the bridge or in failing to take measures to preserve the original space between the bridge and the street.
1. Was there negligence in the construction of the bridge? It may be that ten and one half feet is in fact a scant height for a railroad bridge over a highway; but are we justified in saying so as a legal conclusion? We are aware of no law, statute or otherwise, that fixes the height of such bridges. They should be constructed so as [590]*590reasonably to accommodate tbe public travel. What is reasonable must depend in some measure upon the circumstances of each particular case. It seems that the railroad company, its engineers and the railroad commissioners deemed the height sufficient; otherwise it would have been their duty to insist upon its being greater. The borough, in view of its liability for the highway, insisted that the bridge should be built according to its wishes, which was done. The borough then considered the height sufficient. In addition to this, the fact appears that the injury was caused, not by the bridge being too low in the first instance, but by reason of the height being practically reduced by raising the street. These facts, we think, justify the Superior Court in finding that the company was not negligent in constructing its bridge.
2. Was it negligent in failing to keep this vertical space at its original height ? That could only be done in one of two ways; by raising the bridge, or by preventing the accumulation of earth upon the road-bed. Surely it will not be claimed that the company was bound to raise the bridge as the street was raised from year to year. To impose upon it such a duty would be unreasonable.
Neither was the company bound to prevent the street from being raised. The duty of repairing the street was on the borough. The company was under no obligations to see that the borough did its duty, and it had no power to control the manner of doing it. Any attempt to remove the earth and gravel placed there by the borough would have been an unwarrantable interference with its rights and duties. The borough alone could make repairs, and it alone should be responsible for doing it improperly. The court below was justified in. finding that “ the borough was negligent in causing or. permitting the roadway under the bridge to be filled up till the space under it was too small to satisfy the requirements of common convenience and necessity.”
But it is claimed that the railroad company is liable by statute. Two sections are cited as bearing upon the case; [591]*591Gen. Statutes, p. 828, sec. 28, and p. 324, sec. 30. The 28th section has more particular reference to grade crossings and cases where the location of the highway is changed in order that the railroad may be laid in the most feasible place. The 30th section is the one more particularly relied on. It provides that the railroad company “shall make and maintain such bridges, abutments, tunnels, arches, excavations, embankments and approaches as the convenience and safety of the public travel upon such turnpike, highway or street may require,” etc. It seems to be claimed that under this statute the railroad company was bound to maintain the highway under the bridge, at least so far as to prevent the bridge from interfering with public travel. We think this is a strained and unnatural construction of this section. No word in it aptly describes this piece of road, and the whole section falls far short of imposing upon the company any such duty.
In this connection it was urged by counsel for the borough that “ whatever additional burden of repair the pressure of the bridge might demand, should be assumed by the railroad company, for whose benefit the bridge was constructed. The state of repair in which the roadbed was at the time of the accident in question, would in former times have been ample; if it was inadequate when the accident occurred, it was solely because of the presence of the bridge above it. This is an expense rendered necessary by the presence of the bridge solely.” This is plausible, but it is reasoning from false premises. It assumes that it was more expensive to maintain the road at its former grade than to raise it up, whereas the reverse was doubtless true. It also assumes that the inadequacy of the highway was “solely because of the presence of the bridge,” whereas the finding clearly shows that the bridge was harmless, and would have remained so if the borough had done its duty properly.
It is not to be inferred, however, that the presence of a railroad will in no case impose additional burdens upon towns in maintaining highways. It may well be that their duties in that behalf will be changed or modified, and that [592]*592they will be somewhat restricted in the use of means, as in this case. Such modifications may involve some additional expense which the towns may reasonably be required to bear.
It is further claimed that section ten, page 282, of the General Statutes, which makes the party bound to keep a highway in repair liable in damages caused by any defect therein, makes the company liable under the concluding clause of that section, which is as follows: “ And where the injury is caused by a structure legally placed on such road by a railroad company, it, and not the party bound to keep the road in repair, shall be liable therefor.”
We cannot suppose that the legislature intended to make the company liable in a case like this, where the structure is a bridge over the highway, and the accident clearly resulted from the negligence of the party bound to keep the highway in repair.
The counsel for the borough also raise a question of evidence. It is insisted that the testimony, on which it is found that the borough at the time of the erection of the bridge, in view of its liability for the highway, insisted that the bridge should be built according to its wishes, and that it was so done, was inadmissible.
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Carpenter, J.
This is an action against the borough of Danbury and the New York & New England Railroad Company to recover damages for injuries received by coming in collision with a railroad bridge over the highway. There was a hearing in damages upon default, and judgment against the borough for actual damages and against the railroad company for nominal damages only. The borough and the plaintiff appealed.
Each appeal presents this questionIs the railroad company liable for actual damages?
The material facts are briefly these: In 1880 the railroad company constructed a bridge over West street, in the borough of Danbury, for the purpose of carrying the railroad over the street. The plaintiff was guilty of no contributory negligence. It is expressly found that the railroad company was guilty of no negligence. The bridge was built “ upon plans or directions furnished or approved by the borough,” and was put at such height above the street as the borough required. When first built the vertical space between the bridge and the road-bed was ten feet six inches; when the accident happened it was nine feet and four inches. The difference, fourteen inches, was caused by raising the road-bed from year to year, partly from natural causes and partly from placing gravel thereon by those repairing the street. Therein the court found the borough guilty of negligence. The finding is conclusive in favor of the railroad company, unless the court can see as a conclusion of law from the facts stated that the company was negligent. The supposed negligence consists either in a faulty construction of the bridge or in failing to take measures to preserve the original space between the bridge and the street.
1. Was there negligence in the construction of the bridge? It may be that ten and one half feet is in fact a scant height for a railroad bridge over a highway; but are we justified in saying so as a legal conclusion? We are aware of no law, statute or otherwise, that fixes the height of such bridges. They should be constructed so as [590]*590reasonably to accommodate tbe public travel. What is reasonable must depend in some measure upon the circumstances of each particular case. It seems that the railroad company, its engineers and the railroad commissioners deemed the height sufficient; otherwise it would have been their duty to insist upon its being greater. The borough, in view of its liability for the highway, insisted that the bridge should be built according to its wishes, which was done. The borough then considered the height sufficient. In addition to this, the fact appears that the injury was caused, not by the bridge being too low in the first instance, but by reason of the height being practically reduced by raising the street. These facts, we think, justify the Superior Court in finding that the company was not negligent in constructing its bridge.
2. Was it negligent in failing to keep this vertical space at its original height ? That could only be done in one of two ways; by raising the bridge, or by preventing the accumulation of earth upon the road-bed. Surely it will not be claimed that the company was bound to raise the bridge as the street was raised from year to year. To impose upon it such a duty would be unreasonable.
Neither was the company bound to prevent the street from being raised. The duty of repairing the street was on the borough. The company was under no obligations to see that the borough did its duty, and it had no power to control the manner of doing it. Any attempt to remove the earth and gravel placed there by the borough would have been an unwarrantable interference with its rights and duties. The borough alone could make repairs, and it alone should be responsible for doing it improperly. The court below was justified in. finding that “ the borough was negligent in causing or. permitting the roadway under the bridge to be filled up till the space under it was too small to satisfy the requirements of common convenience and necessity.”
But it is claimed that the railroad company is liable by statute. Two sections are cited as bearing upon the case; [591]*591Gen. Statutes, p. 828, sec. 28, and p. 324, sec. 30. The 28th section has more particular reference to grade crossings and cases where the location of the highway is changed in order that the railroad may be laid in the most feasible place. The 30th section is the one more particularly relied on. It provides that the railroad company “shall make and maintain such bridges, abutments, tunnels, arches, excavations, embankments and approaches as the convenience and safety of the public travel upon such turnpike, highway or street may require,” etc. It seems to be claimed that under this statute the railroad company was bound to maintain the highway under the bridge, at least so far as to prevent the bridge from interfering with public travel. We think this is a strained and unnatural construction of this section. No word in it aptly describes this piece of road, and the whole section falls far short of imposing upon the company any such duty.
In this connection it was urged by counsel for the borough that “ whatever additional burden of repair the pressure of the bridge might demand, should be assumed by the railroad company, for whose benefit the bridge was constructed. The state of repair in which the roadbed was at the time of the accident in question, would in former times have been ample; if it was inadequate when the accident occurred, it was solely because of the presence of the bridge above it. This is an expense rendered necessary by the presence of the bridge solely.” This is plausible, but it is reasoning from false premises. It assumes that it was more expensive to maintain the road at its former grade than to raise it up, whereas the reverse was doubtless true. It also assumes that the inadequacy of the highway was “solely because of the presence of the bridge,” whereas the finding clearly shows that the bridge was harmless, and would have remained so if the borough had done its duty properly.
It is not to be inferred, however, that the presence of a railroad will in no case impose additional burdens upon towns in maintaining highways. It may well be that their duties in that behalf will be changed or modified, and that [592]*592they will be somewhat restricted in the use of means, as in this case. Such modifications may involve some additional expense which the towns may reasonably be required to bear.
It is further claimed that section ten, page 282, of the General Statutes, which makes the party bound to keep a highway in repair liable in damages caused by any defect therein, makes the company liable under the concluding clause of that section, which is as follows: “ And where the injury is caused by a structure legally placed on such road by a railroad company, it, and not the party bound to keep the road in repair, shall be liable therefor.”
We cannot suppose that the legislature intended to make the company liable in a case like this, where the structure is a bridge over the highway, and the accident clearly resulted from the negligence of the party bound to keep the highway in repair.
The counsel for the borough also raise a question of evidence. It is insisted that the testimony, on which it is found that the borough at the time of the erection of the bridge, in view of its liability for the highway, insisted that the bridge should be built according to its wishes, and that it was so done, was inadmissible.
We are not satisfied that the statute which requires the record to show that the question was distinctly made on the trial has been complied with. A large number of votes of the borough and of the warden and burgesses were offered in evidence by the plaintiff, and objected to by the borough. Most of these votes were offered for other purposes; and so far as those purposes are concerned, the objection is not pursued. Among those votes was one passed by the warden and burgesses January 19th, 1880, as follows: “ Voted, that the board approve of the doings of the N. Y. & N. E. R. R. Co. in building a bridge across West street.” That has some tendency to establish the facts objected to; but it does not appear that the objection to the evidence was for that reason; and it cannot be presumed, for, in addition to the fact that it was offered for another purpose, and by the [593]*593plaintiff, the record discloses no attempt by the plaintiff to show that the railroad company was not liable. But aside from this, the facts must have been found mainly on other evidence. What that evidence was does not appear; neither does it appear that it was objected to.
There is no error.
In this opinion the other judges concurred.