
    Frederick H. Schild, Resp’t, v. The Central Park, North & East River R. R. Co., App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 14, 1891.)
    
    1. Negligence—Street railroads.
    Plaintiff in passing over a crosswalk stumbled over one of the rails of defendant’s track which projected three inches above the walk, and was injured. He knew the rail was there, but did not particularly notice it until he fell over it. Held, that defendant was liable for a failure to lay its rails properly and that plaintiff was not guilty of any lack of care which would justify a nonsuit; that he had a right to assume the safe condition of the walk.
    Appeal from judgment in favor of plaintiff, entered on verdict and from order denying motion for a new trial on the minutes.
    Vanderpoel, Cuming & Goodwin (Henry Thompson, of counsel), for app’lt; Chas. J. Patterson, for resp’t.
   Barnard, P. J.

The proof shows that the defendant constructed and maintained its track so that at a crosswalk upon Front street in the city of Flew York the iron rail was entirely above the crosswalk. The plaintiff in March, 1889, at mid-day stumbled over in crossing and was injured. There was also a hole in the sidewalk inside of the rail which one of the witnesses states to have been some seven or eight inches deep and others state it to be from three to five inches below the bottom of the rail. The rail was some three inches in height above the crosswalk if there had been no hole in the crosswalk itself. The question upon the appeal is whether this rail was so maintained as to occasion an obstruction which would charge the railroad company with neglect, if an accident was occasioned by it to a prudent person traveling along the crosswalk. The defendant was under no obligation to keep the crosswalk in repair and the concurrence of the two defects at the immediate "place of the accident was carefully considered in the charge to the jury. Upon appeal with the verdict that the accident was occasioned by the rail which was constructed above the sidewalk, the question is reduced to the single one whether an iron rail three inches above the limit of the sidewalk was proper. The defendant was bound to lay its rails properly and to keep them in proper condition. Worster v. Forty-second Street R. R. Co., 50 N. Y., 203. Where rails were left projecting four and one-half inches above the surface without planking between them and an accident was occasioned to one who crossed the track thus maintained, a verdict was upheld. Wasmer v. Del., L. & W. R. R. Co., 80 N. Y., 212. Where a switch was put down higher than was reasonable and necessary, or was suffered by the railroad to become an obstruction to the public, the company was held liable. Wooley v. Grand Street, etc., R. R. Co., 83 N. Y., 121.

FTo point is taken as to the freedom of the plaintiff from neglect on his part which contributed to the injury. This question was one for the jury under a long line of decisions made by the court of appeals. The traveler had the right to assume the safe condition of the crosswalk. He knew the rail was there, but did not particularly notice it until he fell over it He was not guilty of any lack of care which would justify a nonsuit on that gronnd, and the verdict is right on that point.

Judgment affirmed, with costs.

Pratt and Dykman, JJ., concur.  