
    Frederick H. Schild, Resp’t, v. The Central Park, North & East River Railroad Co., App’lt.
    
    
      (Court of Appeals,
    
    
      Filed June 7, 1892.)
    
    1. Negligence—Street railroads—Rails in streets.
    A railroad corporation having its fails in a public highway, must lay and keep them so as to cause as little injury as possible. Whether the rails are so laid as to constitute on its part a neglect of proper conditions for the public safety is a question of fact for the jury, and not one of law for the court to pass upon.
    2. Same.
    That the evidence showed that no complaint had ever been made, lodged or recorded to the knowledge of the defendant or with the public authorities, does not affect the question of liability.
    Appeal from judgment of the supreme court, general term, second department, affirming judgment in favor of plaintiff.
    The plaintiff in crossing over the defendant’s track, at the intersection of Wall and Front streets in New York city, fell and broke his knee cap. The complaint charged the defendant with negligence in maintaining its rail at a dangerous elevation above the surface of the street, and alleged that the fall and consequent injury were caused by tripping over the rail. The evidence of the plaintiff and of the one witness of the occurrence, a bystander, was that the plaintiff’s fall was occasioned by his striking against the westerly rail of the track. It appeared that there was a break or depression in the flag stone of the crossing on the inside of the rail, and the defendant claimed that the evidence shows that the plaintiff fell from stumbling into the hole. With respect to the cause of the fall the trial judge charged the jury to the effect that if the fall was solely attributable to the presence of the hole in the pavement, then the defendant was not responsible. He instructed them that the defendant was rightly there, and the duty rested upon the city, primarily, to see that the streets were kept safe and secure. He confined the defendant’s liability solely to the condition of its tracks. In so far as the hole may have contributed to produce the result, he instructed the jury in effect, that if, nevertheless, they found that the condition of the rail was an active cause of the plaintiff’s fall, and that the rail was improperly maintained, they would be justified in finding negligence in the defendant. The judgment recovered by the plaintiff, upon the verdict of a jury, was affirmed at the general term, and the defendant has .again appealed to this court.
    
      Henry Thompson, for appl’t; Chas. J. Patterson, for resp’t.
    
      
       Affirming 41 St. Rep., 795.
    
   Gray, J.

I think the instructions given by the trial judge were correct and fairly left it to the jury to pronounce, upon the evidence, what they believed to have been the obstruction to plaintiff’s passage over the track. Their verdict must be taken as establishing, conclusively for us, that the plaintiff stumbled over the rail and not because of the hole in the flagging. The question, therefore, becomes one which relates to the rights of the defendant, and to the duty resting upon it, with respect to the laying and maintenance of its rails upon the street surface. The evidence for the plaintiff and for the defendant conflicts as to the height of the rail above the surface of the street. It was either one inch and an eighth of an inch, or upwards of two inches. There was evidence for the defendant that the track, when laid some ten years previously, was level with the street; but the rails certainly were, at the time of this occurrence, at some height above the street surface and to some extent constituted an obstruction in the highway. The defendant was authorized and had the right to put down its rails in and upon the street and was under no liability, by reason of anything in the grant from the common council, to keep the street pavement between its tracks in repair. But it was under an obligation, which is necessarily implied, as to every use of a public highway, so to construct and to maintain its tracks as that, by the exerqise of a reasonable care and supervision with respect to them, no danger might be occasioned to the public in its use of the highway.

From the case of King v. Kerrison, 3 M. & S., 526, upon which the decision in Oliver v. North Eastern Railway Co., L. R., 9 Q. B., 409, was rested, the principle may be deemed to have been established that a railroad corporation, having its rails in a public highway, must lay and keep them so as to cause as little injury <as possible. The highway, or street, used for the rails must be maintained as nearly as possible as fit for the use of the public, who travel on foot or in vehicles, as it was before; having due regard to the necessity for the rails being there. Whether the rails are so laid as to constitute on its part a neglect of proper conditions for the public safety is a question of fact for the jury, and not one of law for the court to pass upon. It was the province of the jury to decide, in such a case, whether the defendant was negligent. It is not a question of the right of the defendant to be there with its rails in the street; there was only the question whether, in the way, or in the condition, in which it suffered its rails to remain, it was not neglectful of the rights of the public to as safe and unobstructed a use of the street as was reasonably possible under the circumstances.

That the evidence showed that no complaint had ever been made, lodged, or recorded, to the knowledge of the defendant, or with the public authorities, does not affect the question of liability. It was something for the jury to consider, in rendering a verdict. It may, or may not have seemed singular. Many may have fallen from the same cause without injury ensuing; or, if injured, without complaining or suing.

This discussion sufficiently covers the points presented for the appellant, and there being no errors calling for a reversal, the-judgment should be affirmed, with costs.

All concur.  