
    Henry B. Dukes, Resp’t, v. The Eastern Distilling Company, App’lt.
    
      (Supreme Couit, General Term, Second Department,
    
    
      Filed February 11, 1889.)
    
    1. Negligence—Liability fob maintenance of dangebous bridge.
    The premises occupied by the defendant are situated partly on one side of the track of the Long Island railroad, and partly on the other, connected by abridge about fourteen feet, eleven inches above the rails. The railroad cars were from ten to twelve and a-half feet high. The plaintiff was a newly employed brakeman, and while on top of his car applying a brake was struck and injured by the bridge. Held, that the defendant is' liable.
    3. Same—Consent no defense.
    A consent from the railroad company to build the bridge is no defense to the construction of a dangerous nuisance.
    3. Nuisance—Responsibility for.
    Whoever continues and adopts a nuisance is responsible for an injury caused thereby as if he constructed it.-
    4. CONTBIBUTOBY NEGLIGENCE—WHEN NOT.
    A brakeman who was in duty bound to go upon the top of the car, and who was ignorant of the obstacle, is free from fault.
    Appeal from a judgment entered upon a verdict, and from an order denying a motion for a new trial on the minutes at the Kings county circuit.
    Action by plaintiff against defendant for injuries received while he was a brakeman on the Long Island railroad, through the negligence of defendant in constructing a bridge over the railroad by which he was struck while engaged in his duties as a brakeman. •
    On the trial the court charged as follows:
    “ Gentlemen of the Jury: The plaintiff in this action was a brakeman in the service of the Long Island Railroad Company. He was stationed on the last car of the construction train in which there were some eight or nine cars, running into Long Island City on the evening of September 22, 1885. As the train passed through a place called Blissville it ran under a bridge which crossed the road at that place, connecting the two portions of a distillery belonging to the defendant, or in the occupation of the defendant, the Eastern Distilling Company, as the plaintiff claims. According to his account of the accident, as the train reached this point, the engineer blew the whistle of the engine, signifying to him that he was to apply the brake upon the car on which he was stationed, and he thereupon endeavored to comply with the order which the signal indicated, to apply the brake. This rendered it necessary for him to ascend to the top of the car, and he tells you that while in the act of putting on the brake he was struck by something which, for the space of a few minutes, rendered him insensible, and it is to recover the damages which he sustained by reason of the injuries thus inflicted upon him that he brings this suit.”
    “Now, the first material inquiry for you is the situation of this bridge or the bridge (if it was a bridge) which caused the accident. According to the plaintiff it was upon premises either in the possession of the Eastern Distilling Company or belonging to the Eastern Distilling Company.”
    “ I infer from the testimony which has been offered for the defense that it is the contention of the counsel for the defendant that the title for the time being of these premises was actually in two persons named Fleischmann, and not in the Eastern Distilling Company, but the plaintiff contends that whether or not the leasehold title to the property was in the Fleischmanns, the distillery and this portion of it which formed the bridge was occupied by the Eastern Distilling Co. Now, it is enough, as far as that branch of the case is concerned, if you shall be satisfied that the bridge was upon the premises either belonging to x the Eastern Distilling Co. at the time of the accident, or which they occupied for the purpose of their business, and it is essential, before you can render a verdict for the plaintiff, that you should find that the bridge was upon the premises or attached to the premises which, at all events, were occupied by this company.”
    “Now, the defense appears to be, so far as the maintenance of this structure is concerned, that it was originally built by the consent of the railroad company, and one of their witnesses testifies that when the track was broadened some ten years ago, or when it was made double some ten years ago, that the engineer and master mechanic of the railroad company came to the spot, and with his approval the height of the bridge was fixed at or about sixteen feet above the track.”
    “Now, of course if this was done, so long as the consent was not revoked, the presence of the bridge over the property of the railroad company remained lawful; and if such was the fact, if the railroad company consented then that the bridge should be there, the plaintiff cannot recover without satisfying you that the railroad company subsequently revoked the consent and notified the distilling company, or its agents, or officers in charge of the distillery, that they must remove the bridge. As soon, however, as that was done, if it was done, the continuance of the structure then became unlawful. Now, it is the contention of the plaintiff here, that such a notice was given, and Captain Woods, who was in the service of the railroad company before the time of the accident, testified that he himself gave such a notice to a person who has been described or named as Col. Little, and who is testified by other witnesses to have been the superintendent of the distilling company, in charge of the work there. Irrespective of the question of, whether there was any original consent or not, if you are satisfied by proof that before the accident notice was given to this distillery company to remove that obstruction, and this notice came from the Long Island Railroad Company, and reached the distilling company, I say it then became the duty of the distilling company to remove the structure, and the continued maintenance of it was unlawful. ■ It is for you to say whether such were the facts or not. But before the plaintiff can recover, you must be satisfied that the structure was unlawfully there within the rules I have already laid down for your guidance; that is to say, either that the company never consented that it should be put there, or that if it did consent, it subsequently revoked that consent, and notified the distilling company to remove the bridge.”
    “ Now, of course, beyond all these considerations, is the question of whether or not it was a collision with this bridge or a collision with some other structure that caused the plaintiff’s injuries. It has been suggested by the defense, that inasmuch as there was a -bridge 1,500 feet farther east, which this train would reach in its approach to Hunter’s Point, that it might have been that structure-with which the plaintiff came in contact instead of the particular bridge which is connected with the distillery premises. You will recall all the testimony on that subject, and say whether it is a fair conclusion from, all the proofs, that he suffered the injury from contact with this particular bridge; because, unless he did, he cannot and certainly ought not to recover. It is essential that he should show that he was injured here, in order to justify you in giving-him a verdict. Still further, in this class of cases, the-plaintiff must show always not only that the accident-which causes the injuries was the result of the negligence or some unlawful act or fault on the part of the defendant, but that he himself was absolutely free from any fault contributing to the injury. He must be free from what the law denominates contributory negligence, and he must show that as part of his case; satisfy you of that-affirmatively.
    “The plaintiff tells you that as soon as he heard this-signal from the engine, he went up to his place and endeavored to apply the brake, that he tried to see ahead,, that his vision was more or less obscured by smoke, and. that he was then struck by whatever object he came in contact with; as he contends, this bridge.
    1 ‘ The suggestion in behalf of the defense is, that if he had used his eyes and faculties as he ought to have done, he-would have seen the bridge in, time to have avoided it. Now, gentleman, he was bound to exercise his faculties; bound to be vigilant; bound to act as a prudent man would have done, under the circumstances, to protect himself; and if he failed to do this, of course he cannot recover.”
    
      C. Bainbridge Smith, for app’lt; Charles J. Patterson, for resp’t.
   Barnard, P. J.

—The defendant is a domestic corporation carrying on the business of distilling spirits at Blissville, in Queens county. The premises occupied by the firm are-partly on one side the track of the Long Island Railroad and partly 'on the other. There is-a bridge connecting the-buildings on each side of the railroad. This bridge at the time of the accident was fourteen feet eleven inches above the top of the rails. The cars were from ten feet to twelve and a half feet high. Some of these cars call for a brakeman to operate his brakes on top the car. In September, 1885, just before passing under this bridge a signal was-given by a railroad engineer to apply brakes to the train.

The plaintiff was a newly-engaged brakeman and stood on top the car to apply his brake when the bridge hit him and inflicted a severe injury.

The bridge was built with the consent of the railroad company and has been enlarged some with like consent. This consent was no defense to the construction of a dangerous nuisance. The railroad company, subsequently and before the accident, notified the defendant that the bridge was dangerous and that it must be removed. This notice was repeated but was not heeded by the defendant until the accident happened.

It is not important whether or not the company owns the premises. Whoever continues and adopts a nuisance is responsible for an injury caused thereby as if he constructed it. Wasmer v. Del., Lack. and West. R. R. Co., 80 N. Y., 212.

The defendant maintained this structure until right after notice to remove it. No length of time without accident will excuse the defendant for an accident when it does happen. It was only a question of time. When_ a signal to brake was given just before reaching the bridge and a brakeman, who was ignorant of the structure should go on the car as he was in duty bound to go, the accident happened of course. The brakeman was free from fault. The smoke from the engine hindered his seeing the bridge.

The judgment ought, therefore, to be affirmed, with costs.

All concur.  