
    Hugo Schuster, an Infant, by Johanna Schuster, His Guardian ad Litem, Respondent, v. Forty-second Street, Manhattanville and St. Nicholas Avenue Railway Company, Appellant (Originally Impleaded with The City of New York).
    First Department,
    March 8, 1907.
    Negligence — failure of railroad, to repair pavement adjoining tracks — when liable for injuries caused thereby.
    A railroad is liable for injuries received by reason of its failure to repair the pavement between its tracks and for two feet in width outside its tracks as required by section 98 of the General Railroad Law, irrespective of whether any request or demand for such repair has been made by the local authorities. Ingraham and McLaughlin, JJ., dissented, with opinion.
    Appeal by the defendant, the Forty-second Street, Manhattan-ville and St. Nicholas Avenue Railway Company, from a judgment of the Supreme Court iq favor of the plaintiff, entered in the office of the clerk of the county of New .York on the 31st day of May, 1906, upon the verdict of a jury for $2,500, and also from an order entered in said clerk’s office on the 27th day of May, 1906, denying the defendant’s motion for a new trial made upon the minutes.
    
      Charles F. Brown, for the appellant.
    
      F. Lothard McClure, for the respondent.
   Scott, J.:

The only question necessary to be considered on this appeal is whether or not section 98 of the Railroad Law imposes a duty upon a street surface railroad company to keep in permanent repair the pavement between its tracks and two feet in width outside its tracks, irrespective of any request or demand on the part of the local authorities. The defendant’s position is that no such duty is imposed unless and until the company is required by the local authorities to make repairs. The contrary appears to have been held in Conway v. City of Rochester (157 N. Y. 38) and Doyle v. City of New York (58 App. Div. 588). Upon the authority of these cases the judgment should be affirmed, with costs.

i

Patterson, P. J., and Clarke, J., concurred; Ingraham and McLaughlin, JJ., dissented.

Ingraham, J. (dissenting):

I do not concur in the affirmance of this judgment. The plaintiff, a boy eleven or twelve years of age, was on the 25th of April, 1900, playing in Forty-second street, between Eighth and Ninth avenues. Someone called that a policeman was coming, whereupon the plaintiff turned around to see where the policeman was. Seeing the policeman coming on the south side of the street, the plaintiff started to run and ran towards the east about three or four feet away from, the rail. As he ran he turned his head to see where the policeman was and saw a car approaching about twenty or twenty-five feet away from him. While looking around he stepped in a depression in the pavement and pitched forward on the track and was run over by the car. He described the depression as about four or five feet wide along the car track, and about six or seven feét towards the curb. The road was paved with stone blocks, and this depression seems to have been at a place where the blocks had settled and was said to.be about six inches in depth. ’ There is considerable dispute as to the exact location of this depression, but I assume that there was evidence to show that some part of it at least was within two feet of the defendant’s track, and there was evidence that the roadway had "been in this condition for some weeks prior to the accident.

In' his charge to the jury the learned trial judge, in stating the claim of the plaintiff, said: He claims that these injuries which he received were caused through the carelessness and negligence of the defendant in operating this car and also in maintaining or continuing to maintain a hole near its track; ” and then charged the jury that “ the law imposes upon a railroad company the duty of keeping the space between its tracks and two feet on either side of the tracks in good and safe condition. If the hole was within the area I have described you will then consider whether or not negligence may' be predicated upon it. The company, being charged with thp duty of keeping the street in repair as I have described, becomes negligent when it knows that it is out of repair, or it becomes liable in the absence of knowledge that the condition, which by the exercise of reasonable care it should have known to exist, has existed for such a length of time. It is for you to say whether •there was a hole, and under the instruction I have given you,_ whether the defendant was negligent in maintaining it, i'f-there was one.” After the court had finished its charge and. had passed upon the requests of the parties, the plaintiff asked the court to charge: That the duty which was laid upon the railroad company to keep its tracks in a condition of permanent repair is an original duty, and that the railroad company cannot await the order of the local authorities before putting its railroad in a condition.of permanent repair.” That the court charged, and the defendant excepted. There was no evidence that this condition in the street had been caused in any way by the defendant’s laying its tracks in the street, or that it had any connection with the track. The depression commenced within two feet of the track and1 extended some distance toward the curb. There was nothing to show that the plaintiff fell into the depression in the street within two feet of the defendant’s track. The condition was that a depression existed in the roadway of the street which it was the duty of the city of Hew York to keep in repair, and that a very small portion of the depression was within two feet of the track, and- that the plaintiff started to run east three or four feet from the track and fell into the depression. There was no duty of the defendant to do anything to the street outside of the space two feet from the track, and if the plaintiff started three or four feet from the track and ran east, it would seem that he fell more than two feet from the track into a depression for which the defendant was not responsible. The defendant was not liable because of. an accident caused by a depression outside of ihe space that the defendant was bound to repair. I think that this instruction to the jury to which the defendant excepted was, therefore, error which required a reversal of the judgment.

Hor do I think that the defendant was bound to repair this pavement until required by the city authorities. We are not now considering a case where the track of a railroad ¿ompany or any structure connected with, the track caused the injury, but with a depression in the roadbed of th e street, entirely outside of the track and which had no relation to .it, and was not caused by the construction of the track or the operation of the road. Upon this aspect of the case, it was the fall of the plaintiff caused by stepping into a - depression in the roadway that caused the injury, and in discussing . the question we can eliminate the fact that the car ran over him.. "The question presented is whether this defendant was liable in an action based upon negligence for a failure to' repair this depression in the roadway. ' The basis of this liability is section 98 of the Eailroad Law (Laws of 1890, chap. 565, as amd, by Laws of 1892, chap. 676)¿ That section provides: “ Every street surface • railroad corporation so long as it shall continue to use any of its tracks in any street, avenue or public place in any city or village, shall have and keep in permanent repair that portion of such street, avenue or public place between its tracks, the rails of. its - tracks, and two feet in width outside of'its tracks, under the super-' vision of the proper local authorities, and whenever required by them to-do so, and in such.manner as they may prescribe. In case of the neglect of any corporation to make pavements or repairs after the expiration of thirty days notice to do so, the local authorities may make the .same at the expense of such corporation.” A municipal corporation is primarily charged with the duty, to keep the streets or avenues in repair so that they may be reasonably safe for the use of the public,-and it was the.duty of the city of Uew York to. keep this street in repair. In relation to this, duty imposed upon municipal corporations, the Legislature has also imposed upon street surface railroads using the surface of' the streets an 'obligation to keep in permanent- repair the portion of such street, avenue or public place,,between its tracks, the rails of its tracks, and two feet in width outside of its tracks; but that duty is to be performed under the supervision of. the proper local authorities and whenever required by them, to do so.” The question presented relates to the duty imposed upon the railroad' company under this section of the Eailroad Law. The railroad company having placed its tracks upon the Surface of the street, and the street having been paved, regulated and graded,"it would be the duty of the city to repair any depression or hole in the pavement outside of the tracks, but for this provision of the statute. Before the railroad company or any other person could" remove this pavement or do any work in relation to it, the consent of the city of Hew York must he obtained. Section 525 of the Hew York charter (Laws of 1897, chap. 378), which was in force at the time .of the accident, provided that “no removal of the .pavement or disturbance of the surface of any street * * * for any purpose whatever, shall be made -until a permit is first had from the department of highways.” This provision has since been revised in section 391 of the charter of said city of Hew York (Laws of 1901, chap. 466) so as to- provide that “ no removal of the pavement or disturbance of the surface of any street * * * for any purpose whatever, shall be made until a permit is first had from the president of the borough where the work is to be done.” ■ The statute, therefore, required the railroad company to keep in permanent repair the portion of Forty-second street between its tracks, the rails of its tracks, and two feet in width outside of its tracks, under the supervision of the. proper local -authorities,-whenever required by them to' do so", but without power to touch the pavement or to do any work in relation thereto until a permit was first had and obtained from the department of highways, or at present, until a permit is first had and obtained from the president of the borough within which the street/is located. This obligation to repair this street, as I read the_ statute, did not arise until the local authorities required, the defendant to make repairs, for, until they wei;e so required it was impossible for the railroad company to know the manner in " which the repairs were to be made. If the railroad company had attempted to remove this pavement for the purpose of making it level, "without a permit from the borough president, it would have been liable to a penalty, and the very statute which imposes the obligation seems to limit the obligation to make the repairs or the time within which they were to he made to a requirement of the local authorities that the repairs be made, prescribing the manner in which they shall be made. Primarily the statute is passed to protect the city and to relieve it' of an obligation imposed upon it to keep the street in repair. The statute does not in any express' terms make the railroad company liable for any accident that happens to third parties in consequence of a failure of either the city or the railroad company to properly repair the streets, but imposes upon the railroad company using a street an obligation to relieve the city from the expense of keeping the street in repair for a space within its tracks and within two feet of the tracks oh either side'. Certainly, as between the railroad company and the city, there was no ' / .duty imposed upon the railroad company to: take up this pavement and restore it to its'proper condition until the city had required the railroad company to make the repairs, for, by the express provision of the. statute, the railroad company' was'to have thirty days after the notice had been given to make the repairs and charge the" company with the amount expended therefor.

Thus the duty, it seenis to me, that was imposed upon the railroad company was to. make the repairs when required to do so by ■ the- city, and until the 'city required them to make, such repairs, the railroad company wás guilty of no default and was not.'liable, . either to the city or to a third party, for an accident caused by a street-being out of repair: This view of the statute is, I think, sustained by the case of Conway v. City of Rochester (157 N. Y. 33). That was a question between a property owner and the city of Rochester as to the right of the city to make a contract for paving a street through which a line of street railroad was operated. Two questions were certified to the Court of Appeals. The. first was: “ Are the abutting owners on Lyell Avenue liable for the cost of •constructing a new pavement ‘between the tracks and the rails of the tracks, and for two feet in width outside of the tracks of the Rochester Railway Company?” Second. “Is the duty of the Common Council of the. City of Rochester to request the Rochester Railway Company to construct a pavement between its tracks, and the rails'of its tracks, and' for 'two feet outside thereof on Lyell avenue, before the city constructs such pavement, mandatory ? ” After quoting section 98 of the Railroad Law, to which attention has been called, the court said' that the statute was mandatory as to the duty of the railroad company using the street to keep such portion of the street in ..permanent repairthat the municipal authorities were given no authority to relieve the railroad corporation of the whole or any portion of the needed repairs, or to impose the whole or any portion of the cost upon tlie abutting owners or the.city at large; -.that “haying provided that a given portion of a street occupied.by a street surface railroad corporation '* shall be kept in permanent repair, and that the work shall be done by the corporation in actual occupation of the tracks, the statute next undertakes to provide a method by which the .duty enjoined by the statute can he enforced in such a manner as will best protect the interests of the public in such, streets, and so it declares that when such repairs are made they shall be made under the supervision of the proper local authorities.’- But. the power of the local authorities does not' end with the right of supervision of the repairs made to such portion of a street by a surface railroad corporation. The Legislature saw fit to vest in the local authorities the further right to determine when the repairs should he made and liow they should be made.1 * * * The local authorities may determine when and liow the street shall be repaired, but when that is done the statute steps in and says the railroad company is to do the work. * * * Our examination of the statute then leads to the conclusion that under section 98 of the Railroad Act it became and was the duty of the Rochester Railway Company to keep in permanent repair such portion- of the street through which it passed, as was within its tracks, and two feet in width outside, and that the local authorities of" that city were vested with the authority of determining when the repairs should be made, and thus empowered, the local authorities did determine that repairs should he made and the character óf them. They decided that the entire street should be repaved and that the material to be used- should he asphalt. This they had the right to do, and when this, determination was made the statute intervened and commanded that the Rochester Railway Company should ■ make "the repairs thus ordered, under the supervision of the local authorities.”

Tills seems to me to be a plain declaration that the duty resting upon the railroad company did not arise until the municipal authorities determined what repairs were necessary and when they should be made, and that, in this case, as no determination had been made, neither as to the nature of the'repairs nor as to the time when they should be made, no duty was imposed upon the railroad company to make the repairs.; and the fact of the existence of this depression, even though it wfis within two feet of the railroad, was not a failure by the railroad company to perform any duty imposed upon it by law, and, therefore,, could not he the basis of a recovery by the ‘ plaintiff. That the municipal corporation should have control over the time when and the manner in which the public streets are to be repaired or the pavement torn up seems to me essential to the proper maintenance of the, streets. It may well be that the local authorities would consider that this street should not be torn up at this time because of the use of the street, but that it should be repaired when the obstruction to the street would cause less inconvenience to the public. This the, statute left to the discretion of the local authorities, both as to the time when and the manner in ■ which.the repairs should be made Unless the railroad company was under the absolute duty to at once repair the pavement as.soon, as it became in-any way out of repair,, without any permit from" or ■ requirement of the municipal- authorities, then it seems to me that there can be no liability for a failure to make the repairs ; and as ■the statute only imposes the duty to make the repairs up'on. the railroad company when required by the municipal authorities, the duty did not arise until the railroad company was Required to make ■ the repairs, and 'there was, therefore, no violation of duty by the defendant.

The case of Doyle v. City of New York (58 App. Div. 588) is also relied upon by the plaintiff. In ‘that case the court was construing the charter of the Brooklyn City Bailroad Company,, under which the railroad that caused the injury was operated. The provisions of that charter are materially different from the provisions of section 98- of the Bailroad Law, and imposes.a much broader obligation upon the corporation. In the course of thé opinion in. that case the court refers to section 98 of the Bailroad Law, and. there are some expressions in the opinion which would seem to indi-' cate that the defendant was liable without any action by the city authorities, but what was said in relation to the' Bailroad Law was not necessary to a decision of the case, as the'liability could have been and was placed upon' the provision of the charter of the railroad company; but it seems to me- that the, views of the - Court of Appeals, as expressed in Conway v. City of Rochester we inconsistent with the intimation- of the court in the Doyle case.

I think, therefore, the judgment should be reversed.

McLaughlin, J., concurred.

Judgment and order affirmed, with costs. Order filed. 
      
      Laws of 1890, chap. 565, as amd. by Laws of 1892, chap. 676.— [Rep.
     