Worster v. Forty-second Street & Grand Street Ferry R. R.

3 Daly 278

Opinion

By the Court.

Footnotes

•

*

Larremore, J.

A nonsuit was granted in this case upon the ground that there was no evidence showing that the defendants were aware of the bad condition of the track, nor any evidence showing that the same was in such bad condition, for such a period of time as would imply that the defendants must, of necessity, have been aware of the fact.

The plaintiff swore that “ the horse caught her hind-off foot in the railroad track,” that is, the right track inside the first rail. The foot went down into a hole about six inches deep, just deep enough and narrow enough to catch the horse’s foot under the iron of the rail. The iron projecting about one-quarter of an inch over the wood-rail, it dovetailed, as it were, the foot of the horse completely.

He says, “ the stone that supported the sleepers was'gone and he says, “ the iron rail caught this part of the hoof, and tore the hair and hoof all out for four square inches.”

This testimony is corroborated by the witness Abbott, who also swore that he had seen the cobble stones were gone, some time before the accident, and that defendants’ cars ran over this track.

It was also admitted on the trial that no other cars than those belonging to the defendants ran on that track.

It was held by the general term of this court, in Fash v. Third Avenue R. R. Co. (1 Daly, 148), that a railroad company having undertaken to lay down a rail track along a street, which is a public road, are bound to lay it down properly, and keep it in a proper condition thereafter, and that it was a question for the jury to determine, whether they have done so or not. The injury to plaintiff’s horse occurred between the tracks, and was occasioned by his foot being caught in a hole under the iron of the rail, the iron projecting about one-quarter of an inch over the wood rail.

It being conceded that the 'defendants’ cars were the only ones that used this track, it is fair to presume, under the authority of the case above cited, that there was some obligation on their part to see that the track was kept in a safe coin dition.

The injury complained of evidently resulted from negligence, and it should have been left to the jury to determine by whose negligence the plaintiff sustained damage.

The judgment appealed from should be reversed.

Judgment reversed.

Present—Daly, Ch. J., Loew and Larremore, JJ.