
    Kate S. Thompson, Respondent, v. United Traction Company, Appellant.
    Third Department,
    November 29, 1911.
    Sailroad — negligence — injury by stumbling over rail —charge — verdict.
    Where in an action to recover for personal injuries received by a pedes- . trian who stumbled over the rail of 'a otreot railroad which- projected ' above the level of the ground owing to the fact that -the crosswalk had been torn np to lay the rail, the court has charged that under the evidence there was no duty on the railroad to lay or maintain the crosswalk at the level of the- rail, there was no issue for the jury, and a verdict for the plaintiff will be reversed.
    Appeal by the defendant, the United Traction Company, from a judgment of the County Court of Albany county in favor of the plaintiff, entered in the office of the clerk of said county on the 26th day of May, 1911, upon the verdict of a jury for $1,500, and also from an order entered in said clerk’s office on the 27th day of May, 1911,' denying the defendant’s motion for a new trial made upon the minutes.
    
      P. C. Dugan, for the appellant.
    
      Rollin B. Sanford, for the respondent.
   Per Curiam:

The action is to recover damages for personal injuries received from a fall occasioned by the plaintiff stumbling on the defendant’s rail while walking across defendant’s tracks at a crosswalk in the city of Albany.

The rail had been newly laid, necessitating the tearing up of the crosswalk. The rail was at a proper level with the other tracks, hut the flagstone of the crosswalk was depressed so that the rail projected about an inch and a half above its surface.

It did not affirmatively appear upon the trial whether or not it was the duty of the defendant to maintain the pavement and crosswalk between and adjacent to its rails. At the request of the defendant the court charged “ that it was not the. duty of the defendant to either lay or maintain this flagstone upon which the plaintiff walked,” and further, “that it was not the duty of the defendant and it was not required' to lower' its rail to meet the. surface of that flagstone which it was not its duty to maintain.”

Under this charge nothing was left for the jury to decide. If the defendant was under no duty to maintain the flagstone at a proper level with its rail it was not responsible for its condition or situation. - That responsibility rested with the municipality.

The defendant had a right to maintain its rails in the street and the court properly instructed the jury that it need not lower its rail to meet the level of the flagstone.

Whether the inequality proved to exist was sufficient to charge the defendant with negligence provided it was its duty to maintain the flagstone we are not now called upon to decide.

Under the law of the case as given to the jury we think the verdict was not justified, and that the judgment and order must be reversed and a new trial granted, with costs to the appellant to abide the event.

All concurred.

Judgment and order reversed and new trial granted, with costs to appellant to abide event.  