
    Jane Thompson, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
    
      Negligence — a traveler op, a highway falling into a ditch maintained by a railroad company at a crossing—when the questions of negligence and. contributory negligence cure for the jury.
    
    In an action brought against a railroad company to recover damages for personal injuries sustained by the plaintiff, who, while walking carefully along the principal street of a village which was crossed by the defendant’s tracks, on a very dark night, fell into a ditch maintained by the defendant in close proxim ity to the street, evidence tending to show that a fence which guarded the ditch on the south side of the tracks ended, as did the sidewalk on that side, within six feet of the most southerly of the defendant’s tracks, from which point there was no well-defined path over the tracks, so that a person traveling along the highway towards the south might, after crossing the tracks, through a single misstep, pass to the east instead of the west side of the fence and fall into the ditch, justifies the submission to the jury of the question of the defendant’s negligence and of the plaintiff’s contributory negligence.
    Appeal by the defendant, The New York Central and Hudson River Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Orleans on the 21st day of November, 1898, upon the verdict of a jury-for $1,000, and also from an order entered in said ■clerk’s office on the 21st day of November, 1898, denying the ■defendant’s motion for a new trial made upon a case containing exceptions.
    Although the notice of appeal recites that the motion for a new trial was made upon a case containing exceptions, it appears from the order denying the motion that the motion was made upon the stenographer’s minutes.
    The action was commenced on the 8th day of March, 1898, to recover damages for injuries sustained by the plaintiff on the 12th day of November, 1897, by falling into a ditch constructed and maintained by the defendant upon its premises in the village of Lyndonville, N. Y., which injuries, it is alleged, resulted through the negligence of the defendant.
    The defendant controls and operates a railroad, which extends east and west through the village of Lyndonville, in the county of Orleans. The southerly track is known as the main track, and another on the north side of it, which extends parallel with and the ordinary distance from the main track, is known as the siding. South of the main track, and upon the property and right of way of the defendant, there is a ditch extending for a considerable distance, varying from eight to ten feet in depth, being from fifteen to twenty feet broad at the top, the sides being steep or abrupt. Crossing this ditch and the two tracks of the defendant at right angles is the main street or highway in the village of Lyndonville. The surface of defendant’s roadbed, of the highway and the premises adjacent, is all substantially level. The village, which numbers about five hundred inhabitants, lies to the south of defendant’s tracks.
    Leading from the village northerly, the highway crosses defendant’s tracks and the ditch, there being a driveway for teams in the center of the usual width, and a plank sidewalk on each side of the highway. The ditch is carried under the highway Etnd sidewalk by a stone culvert, which extends the full width of the highway. The sidewalk upon the easterly side of the highway extends to within six feet of the southerly rail of defendant’s track, and to the northerly bank of the ditch. From that point leading north there is no regular sidewalk, and pedestrians cross the defendant’s tracks upon a more or less irregular cinder path which extends northerly of defendant’s tracks. The evidence tends to indicate that, from defendant’s tracks, and on the northerly bank of the ditch, there is no well-defined walk, except such as is made by tramping upon the cinders or ground beyond.
    Commencing some distance southerly of defendant’s tracks, and immediately east of the sidewalk, there was a fence extending across the ditch in question, and to a point about six feet from defendant’s track, and this fence, at the sidewalk crossing the ditch, made a barrier or guard which would prevent people, while upon the sidewalk, from falling into the ditch. This fence, guard or barrier stopped at precisely the same point that the sidewalk stopped, and, as before said, within about six feet of the southerly rail of defendant’s main track. The evidence tends to indicate that such fence extended as near to defendant’s track as was proper, having in view the safe operation of its trains at that point. The situation, as above described, had continued substantially the same from the year 1876.
    The plaintiff, on the 12th day of November, 1897, had been at work in a factory located northerly of defendant’s tracks and property, and easterly of the highway in question. About six o’clock on the evening of that day, she, with two other employees, left the factory to go to their respective homes, which necessitated their crossing the tracks and property of the defendant. The evidence tends to show that at the time they left the factory it was very dark, so dark, as some of the witnesses expressed it, that “ you could not see your hand before your face.” The plaintiff made her way westerly towards the highway. She states that there was nothing to indicate whether she was upon the beaten path or otherwise, except the knowledge that she was not walking upon the grass, but rather upon cinders. She also states that at the time the wind was blowing very hard; that when she reached the railroad track of the defendant she did her best to take such course as would lead her to the walk which approached the southerly track of the defendant from the south and across the ditch in question, but that, while doing her best in that regard, she went a little too far to the east, went on the east side of the guard, and fell into the ditch just east of the sidewalk. In other words, that she stepped on the wrong side of the barrier leading across the ditch. In so falling she sustained the injuries complained of, which are not the subject of very much dispute.
    The plaintiff had lived in the village of Lyndonville all her lifetime, had crossed the defendant’s property -upon the sidewalk many times, and was entirely familiar with the situation as it existed at the time.
    The contention of the plaintiff is that the defendant was guilty of negligence in permitting the ditch upon its property to so remain that the plaintiff, under the circumstances disclosed by the evidence, should have fallen into the same.
    The defendant contends that, in the exercise of ordinary care and prudence, it did all that it was required to do to protect the traveling public and the plaintiff against injury from the structure which it had made and maintained.
    
      Charles A. Pooley, for the appellant.
    
      S. E. Filkins, for the respondent.
   McLennan, J.:

The rule of law applicable to the facts in this case is well settled. In the case of Beck v. Carter (68 N. Y. 283) the head note is as follows : “ If the owner of land make an excavation thereon adjacent to a highway, or so near as to make the use of the highway unsafe or dangerous, he will be liable to a traveler who, while using ordinary care, falls into it and is injured.”

In that case the court had charged the jury as follows: It makes “no difference whether the excavation was seven, or nine, or ten feet from the originally established boundaries of the thoroughfare (alley); if it was so situated that a person lawfully using the thoroughfare, and in a reasonable manner, was liable to fall into it, the defendant was liable.” The Court of Appeals held that such charge was proper.

In Shearman & Redfield on Negligence (§§ 390, 391) it is said : “ It is gross negligence to construct a passageway along a precipice, without having sufficient guards for the protection of travelers.”

Wharton on Negligence (§ 976) says as to negligence in fencing roads: “ The true test is ‘ whether there is such a risk of a traveler, using ordinary care in passing along a street, being thrown or falling into the dangerous place (adjoining the highway) that a railing is requisite to make the way itself safe and convenient.’ ”

The case of Morrell v. Peck (88 N. Y. 398) was an action brought to recover for injuries sustained by the plaintiff, because a bridge, upon which he was traveling at the time of the accident, was without guards or railing, and had been knowingly and negligently left so by defendant. The plaintiff, who was walking in the traveled track of the highway in the evening, encountered a loaded team on the bridge, stepped aside to allow it to pass, and in so doing, without negligence on his part, fell over the unprotected side of the bridge and was injured. The verdict for the plaintiff was sustained.

The case of Maxim v. Town of Champion (50 Hun, 88) was an action brought against the town of Champion to recover damages for injuries sustained by the plaintiff, by falling over an embankment to a bridge which was not guarded. It was held that it was a question for the jury, under all the circumstances disclosed by the evidence in that case, to determine whether the defendant was guilty of negligence in permitting the embankment to remain unguarded, and this notwithstanding the fact that it had been -in the same condition for a period of sixty-eight years. The case was affirmed in 119 New York, 626.

If there had been no guard upon the sidewalk leading across the ditch in question, and the plaintiff while upon such sidewalk, and while exercising ordinary care and prudence, had stepped a little to one side, or had been blown by the wind a little to the east and had fallen into the ditch, there could be no question as to her right of recovery. The circumstance that the ditch was left unguarded at the point where the sidewalk terminated, rather than opposite the sidewalk itself, cannot be of importance.

If the evidence of the plaintiff is to be believed, she was proceeding along the public highway leading to her home in the most careful and prudent manner. She was attempting as best she could while crossing the defendant’s two tracks, and the six feet between the southerly track and the ditch, to take such course as would lead her to the sidewalk crossing the ditch. While so proceeding in the darkness, she went a little too far to the east, there being no light, no walk or well-defined path to guide her, and came to the ditch, which at-that point was wholly unguarded, fell into it and received the injuries of which she complained. So far as the plaintiff was concerned, the guard across the ditch along the sidewalk was of no use to her. The accident occurred and the injury was done before she reached such sidewalk.

Upon all the evidence in this case, it was for the jury to say whether or not the defendant was guilty of negligence in constructing and maintaining a ditch of the character of the one in question, in such close proximity to the highway that a traveler, by making a single misstep when attempting to cross such ditch, should have fallen into it.

It was also a question of fact for the jury to determine whether or not, under the circumstances, the plaintiff was guilty of contributory negligence.

Both questions were submitted fairly and impartially by the learned trial justice to the jury, and the jury having found adversely to the defendant, no reason is apparent why such finding should be disturbed.

None of the exceptions to the reception or rejection of evidence, or to the charge of the learned trial justice, taken by the defendant, call for reversal of the judgment or order appealed from.

The judgment and order appealed from should be affirmed, with costs.

All concurred, Follett, J., not sitting:

Judgment and order affirmed, with costs.  