
    (80 Hun, 394.)
    NEFF v. NEW YORK CENT. & H. R. R. CO.
    (Supreme Court, General Term, Second Department
    July 27, 1894.)
    1. Nuisance—Railroad Bridge.
    A bridge maintained across a railroad track, with the consent of the company, of insufficient height to allow a man standing on a freight car to pass thereunder, is not per se a nuisance.
    2. Railroad Companies—Duty to Maintain Telltales at Bridges.
    A railroad company whose tracks cross those of another company by a low bridge is not required to maintain telltales to warn trainmen on the under road of the danger.
    Appeal from circuit court, Orange county.
    Action by William H. Neff against the New York Central & Hudson River Railroad Company to recover damages for personal injuries alleged to have been caused by defendant’s negligence. The complaint was dismissed, and plaintiff appeals. Affirmed.
    Argued before DYKMAN and CULLEN, JJ.
    John W. Lyon, for appellant.
    Ashbel Green (A. 8. Cassedy, of counsel), for respondent
   CULLEN, J.

This is an appeal from a judgment entered upon a nonsuit at circuit. The plaintiff was a brakeman in the employ of the Erie Railway Company. At a point some short distance west of Jersey City, in the state of New Jersey, the West Shore Railroad, which is leased and operated by the defendant, crosses the Erie Railway on a bridge which is 18 feet above the rails of the last-named road. There were no “telltales” on the bridge. The plaintiff was on the top of a refrigerator car in a train on the Erie road, and, while the train was passing under the bridge, was struck by it, and severely injured. For this injury he has sued the defendant. The theory upon which it is sought to enforce a liability against the defendant is that the bridge was per se a nuisance, and that the defendant was guilty of maintaining a nuisance. We think this proposition cannot be sustained. The duty of maintaining its railroad reasonably safe for operation by its servants rested on the Erie Company, not. on the defendant. Undoubtedly, if any trespasser on a railroad caused an injury to its employés or passengers, the trespasser would be liable; but there was no proof or claim that the defendant was a trespasser. On the contrary, it must be assumed (premising that defendant’s road was constructed after the Erie Railway) that the bridge was built with the assent of the Erie Company. The question, then, is whether a structure across a railroad of height insufficient to allow bralcemen to stand on the top of freight cars is per se illegal. There is no statute to be found in this state, nor proof of any in the state of New Jersey, to show that such is the law. The New York statute (chapter 439, Laws 1884) directing that railroads shall place warning signals at every low bridge or structure which crosses the track recognizes the legality of such bridges and structures. It is a matter of common knowledge that the vast majority of bridges and tunnels are of height insufficient to permit persons to stand on the tops of cars while passing under or through them. The reports are full of cases of injuries to railroad employés arising from such bridges or structures, yet with one exception, to be commented on hereafter, we cannot find any authority for the claim that it is illegal or negligent to maintain such a structure. In Wallace v. Railroad Co., 138 N. Y. 302, 33 N. E. 1069 (the latest case on the subject), where a nonsuit was reversed, the negligence of the defendant was placed on the condition and location of the warning signals, but no suggestion was made that the bridge itself was improper. The principal authority relied on for the plaintiff is Dukes v. Distilling Co., 51 Hun, 605, 4 N. Y. Supp. 562. In that case the plaintiff, a brakeman on the Long Island Railroad, was injured by a bridge placed by the defendant over the railroad. The case was affirmed by the court of appeals without opinion. 25 N. E. 954. In the opinion at general term it is said: “The bridge was built with the consent of the railroad company, and has been enlarged somewhat with like consent. This consent was no defense to the construction of a dangerous nuisance.” These isolated expressions would doubtless sustain the plaintiff’s claim, but they were entirely obiter. A reference to the printed appeal book shows that here was no such point in the case. At circuit the exact contrary was assumed to be the law. The trial judge charged: “But before the plaintiff can recover you must be satisfied that the structure was unlawfully there,-—that is to say, that the company never consented that it should be put there; and, if it did consent, it subsequently revoked that consent, and notified the distillery company to remove it.” The dictum of the distinguished presiding justice in the Dukes Case would seem in conflict with his -own opinion in Ryan v. Railroad Co. (Sup.) 4 N. Y. Supp. 381, where the defendant was held not liable for failure to place warning signals on the interior bridges of a group of five low bridges. As to the absence of “telltales” on the bridge, no statute of New Jersey was proven making it a duty to maintain such signals. If it be conceded that the use of such signals is now so general that a failure to maintain them may be deemed negligence, even in the absence of statutory requirement, we think the duty of such maintenance devolved upon the Erie Railroad Company, not upon the defendant. The judgment appealed from should be affirmed, with costs.  