
    Augusta A. Currier, Respondent, v. The Ogdensburgh and Lake Champlain Railroad Company, Appellant.
    
      N. Y. Supreme Court, Third Department, General Term,
    
    
      July 6, 1889.
    1. Railroad. Duty.—A railroad company which locates its road upon the public highway, is legally bound, not only to construct the same in such manner as to render it reasonably safe for the traveling public, but also to maintain it in that condition
    2. Jury. Determination final.—When a fair question of fact, upon conflicting evidence, is presented for the consideration of the jury, and their determination is supported by the facts and circumstances of the ease, the general term will not interfere with their finding.
    Appeal from, a judgment entered upon a verdict, and from orders denying a motion for a new trial upon the merits, and for newly discovered evidence.
    
      Louis Hasbrouck, for appellant.
    
      Albert Hobbs, for respondent.
   Ingalls, J.

While the evidence in regard to the removal of the planks, and the condition of the track at the time of the casualty, was conflicting, yet we are satisfied that the jury were justified in finding as they did upon that question. Witnesses on the part of the plaintiff testified at the trial that the planks had been removed, based upon their observation and inspection, at the time of the accident, and also before it occurred. To overcome such evidence, the defendant relied upon the testimony of its employees, who respectively spoke, with greater or less certainty, in regard to the subject. We are convinced that a fair question of fact was presented for the consideration of the jury, and that their determination is supported by the facts and circumstances of the case to such an extent that this court should not interfere with their finding. The question of contributory negligence was, we think, properly decided by the jury. It was submitted by the trial court as a question of fact to be determined by the jury, and in such form as to render the plaintiff chargeable with even the negligence of her husband in the management of the horse, if the jury should determine that any such existed and contributed to the jury, which was certainly most favorable to the case of the defendant. The defendant having located its road upon the public highway, was legally bound not only to construct the same in such manner as to render it reasonably safe for the travelling public, but was also obligated to maintain the same in that condition. Such obligation was voluntarily assumed by the defendant for its benefit, and it should faithfully discharge the duty imposed by law. Worster v. Forty-second Street R. R. Co., 50 N. Y. 203. The doctrine upon this subject is defined in the opinion pronounced, in the case referred to, by Chief Justice Church, in the clear and concise manner so characteristic of the opinion of the learned judge. We have carefully examined the affidavits upon the motion for a new trial, upon the ground of newly discovered evidence,, and we find no reason to differ with the conclusion of the learned justice who decided the motion.

He tried the cause, and became thereby presumably familiar with all the features thereof, and consequently was. enabled with facility to understand and determine the force and probable effect of the evidence sought to be put into the case of the defendant upon another trial, if it-should be granted. We are not able to resist the impression acquired by an examination of the case, tliat such motion was rather experimental, and lacking in the merit, which should exist to recommend such a motion to the-favorable consideration of the court. We are satisfied that no sufficient ground has been established by the defendant which calls for a reversal of the judgment, or for a new trial, upon the ground of newly discovered evidence. The judgment must be affirmed, and new trial denied, with, costs.

Learned, P. J., and Landon., concur.  