
    Rockwell vs. The Third Avenue Railroad Company.
    A railroad company having a right to lay tracks in a public street, is bound to lay them in a proper manner, and to keep them in repair; and if any injury occurs, by reason of neglect in either respect, the company is liable.
    If the defect be visible, notice to the company of such defect, is not necessary.
    An omission to know of sucha defect, is prima facie negligence, as much as an omission to repair, after notice.
    And the presumption of negligence is complete when it appears that the defects existed, and an injury was caused thereby.
    The plaintiff, while lawfully passing along the street, was injured by a splinter projecting from a rail upon the defendant’s railroad. It appeared from the evidence, that the defendant was in the habit of allowing such defective rails to remain, after its officers knew of their condition. Held, that under such circumstances, notice to the company, of the defect, was unnecessary.
    And the plaintiff having been confined to his bed for six weeks, suffering great pain, and unable to attend to business for several months, in consequence of the injury, and left permanently lame, and obliged to pay from $1,200 to $1,600 for physician’s fees and other expenses; it was held that a verdict for $12,000 damages was not excessive, when the nature of the injury was considered. , •
    THIS action w^s brought to recover for an injury alleged to have been sustained by the plaintiff, May 24, 1865, by striking his foot against a piece of iron, partially detached from a broken or worn out rail in the track of the defendant’s road, which it was alleged the defendant, from negligence or want of skill, permitted or allowed to be there.
    The answer put in issue all of the allegations of the complaint, except that it admitted the defendant was a corporation.
    The plaintiff was a member of a hook and ladder company, and with his associates, was running with them truck, down the avenue, at the time the accident occurred. He testified that he was thrown ten or fifteen feet, and that after recovering so as to sit up, he crawled back to see if he could find" anything against which he had struck his foot, and found a piece of rail sticking up, which he twisted off and produced at the trial. He was in the coal and livery-stable business, at the time of the accident, and his average earnings were about $1,000 per annum. He was confined to his bed about six weeks, went to his livery office in about two months, and was able to attend the office, part of the time during the fall and winter following, and finally recovered his general health, but claimed on the trial to be lame and not as able to walk or stand upon his feet as before. His physician’s fees and other expenses were about $1,200 to $1,500. The piece of rail penetrated Ms right foot, directly above the ankle joint, causing a very dangerous wound and a permanent injury, as described by the testimony. There was no evidence as "to when or how the rail was split or splintered, nor that the defendant or any one else had knowledge that it was splintered, until after the accident occurred, nor that it was in a splintered condition prior to the accident.
    There were no exceptions to evidence. When the plaintiff rested, and also at the close of the testimony, the defendant, by its counsel, moved to dismiss the complaint upon the grounds:
    
      First. That there was no evidence that prior to the time of the accident, .or prior to the passage of the hook and ladder carriage over the place of the accident, the track of the TMrd Avenue Railroad Company, at the place or in the vicimty of said accident, was in anywise out of order.
    
      
      Second. Upon the ground that there was no evidence of any negligence on the part of the defendant.
    
      Third. That the plaintiff was himself guilty of negligence, contributing to the injury complained of.
    
      Fourth. That the plaintiff was guilty of negligence, contributing to the injury complained of, in running over the alleged unsafe rail, if it was a place of danger, or one which the defendant was supposed to know was so considered.
    
      Fifth. Upon the ground that there was no obligation on the part of the defendant towards the plaintiff in this case, to keep the track in repair; that the plaintiff was not a passenger, and it only owed him the same duty that it owed to any other citizen.
    
      Sixth. That even if the defendant was bound to keep the track at the place of the accident in repair, its liability for not doing so, was to the inayor, aider-men and commonalty of the city of New York, and not the plaintiff, and therefore the complaint should be dismissed.
    
      Seventh. That there was no proof that any notice had ever been given to the defendant, or that it knew of the condition of the rail in question, or that it was unsafe.
    
      Fighth. That the fact that a piece of rail was found in the condition described by the evidence, was no proof that the subject had ever been brought to the defendant’ s attention in any way, or that it had any notice that said rail was in an unsafe condition.
    ' Ninth. That if the rail was split prior to the-accident, there was no proof but that it was split by the hook and ladder carriage, with which the plaintiff was running, passing over it immediately prior to the accident.
    The court denied the motion, and the defendant, by its counsel, duly excepted. The jury found a verdict for the plaintiff for $12,000. A motion for a new trial on the minutes was denied, and the defendant appealed from the order denying a new trial, and also from the judgment.
    
      A. J. Vanderpoel, for the appellant.
    I. The defendant’s track was lawfully in the street.
    
      (Resolution of Com. Council, Dec. 31, 1852, &c. Valentine's Corp. Ord. 636. 2 Hoff. Laws, 695.)
    II. If it should be held that both the city corporation and the defendant were responsible to the plaintiff for the condition of the street in question, as a highway, the same rules of law must apply to both. Ho greater or different rule of liability can be applied to the defendant than could have been applied to the city if this action had been brought against it.
    III. The well established rules of liability in such cases, applicable to the city, require the plaintiff to show that the city had actual notice of the defect complained of, or that such defect had existed sufficient time to become notorious, or to give constructive notice thereof to the city authorities. (Requa v. The City of Rochester, 45 N. Y. 129.) As to railways, see Oakland Railway Co. v. Fielding, (48 Penn. 320.)
    IY. The defendant had no notice of the existence of the splinter prior to the accident, nor does it appear that any person had knowledge of it, or that it existed.
    Y. The plaintiff was bound to show, affirmatively, that the injury complained of was caused by the negligence of the defendant. This he failed to show. 1. It does not appear from the evidence that the rail in the defen- - dant’s track was improperly laid, or of poor material; • nor does it appear that the splinter complained of was caused by the defendant’s car, or by any act of the defendant ; the evidence shows rather that it was caused by wagons driven along the road, or by the hose cart itself. 2. There is no evidence that the defendant was guilty of negligence in not removing the splinter prior to the time of the accident. If it existed the defendant did not know of it; and it had not existed for such a length of time as to charge the defendant with negligence in not knowing it. There is no evidence that it existed prior to the accident. 3. The plaintiff was required to show that the splinter existed at the time of the accident through some negligence of the defendant. The existence of the splinter was of itself no evidence of negligence. (McGinity v. The Mayor, &c., 5 Duer, 674. Waldron v. R. and S. R. R. Co., 8 Barb. 395.) 4. The jury could not infer negligence from the existence of the splinter. There was nothing to show what splintered the rail; but from the evidence the inference is that wagons driven over the track, or the hose cart, caused it, and not the defendant’s cars. If the evidence would justify an inference consistent with the absence of negligence on the part of the defendant just as well as it would an inference of negligence, the plaintiff cannot recover. (Smirk v. First Nat. Bank, 99 Mass. 605.)
    YI. There was no conflict of evidence in relation to the facts. The question of negligence was therefore one of law, and ought not to have been submitted to the jury. The jury disregarded the charge of the court.
    YII. The court erred in denying the defendant’s motion to dismiss the complaint when tlie plaintiff rested his case. The evidence had failed to establish any negligence on the part of the defendant.
    YIII. The court erred in refusing to dismiss the complaint at the close of the testimony. Hot only had the plaintiff failed to establish negligence on the part of the defendant, but the defendant had, by its evidence, established a presumption or inference that the splinter complained of, was caused by some person other than the defendant.
    IX. The damages are excessive. The plaintiff, if entitled to recover, could only recover for the direct pecuniary loss sustained: by him.
    X. The corporation of the city, and not the defendant, was responsible for the condition of the street as a highway. (Hutson v. The Mayor, &c., 9 N. Y. 163.) 1. The corporation of the city being responsible, it conld not relieve itself of this responsibility as against a stranger by any contract with the defendant; nor conld any contract between the city corporation and the defendant give to a stranger a right of action against the defendant which would not exist independent of such contract. 3. ]STo special obligation existed on the part of the defendant towards the plaintiff by reason of the defendant owning the rails. The plaintiff was not a passenger, and the defendant was under no greater or different obligations to him than was each individual in this city. 3. If without fault on the part of the defendant the rail became splintered, the defendant was under no obligation (as against the plaintiff) to remove the splinter. The mere fact of ownership is not sufficient to compel the owner to take his property out of the highway, whether it is an obstruction or not, nor to make him liable for any injury which such obstruction may occasion by being there. The material question is, who is responsible for its becoming an obstruction, or for not removing it. The question of ownership is material only so far as it tends to throw light upon the other questions.
    XI. The motion for a new trial should have been granted upon each of the grounds on which it was based, and the order denying said motion should be reversed.
    
      Joseph H. Choate, for the respondent.
    I. To the first ground upon which the motion for a non-suit is founded there is an incorrect statement of the facts. The unsafe condition of the track of the defendant was clearly proved by the plaintiff’s witnesses.
    To the second, third and fourth grounds urged on the motion for the nonsuit we reply, that the uncontroverted facts in the case are, that the plaintiff, while proceeding down Third avenue in the evening, with his truck, in the line of his duty as fireman, met with this accident. The track of the defendant having been shown to have been out of repair, questions of negligence on the part of the defendant, and of contributory negligence on the part of the plaintiff, were properly left to the jury. Where the evidence for the plaintiff raises a presumption of negligence, by showing an accident that would not ordinarily happen without negligence, the burden is upon the defendant to show that it did not occur through any negligence on his part. (Caldwell v. N. J. Steamboat Co., Court of Appeals, Alb. Law Jour. vol. 6, No. 9.) “It may be regarded as now in accordance with the uniform tenor of English cases, and those in our courts, that the general question of negligence of the defendants, and the contributory negligence of the plaintiff, are exclusively within the province of the jury.” (Pendril v. Second Av. R. R. Co., 43 How. Pr. 411, and cases there cited. Maloy v. N. Y. Central R. R. Co., 58 Barb. 182.)
    To the propositions in the fifth and sixth grounds of nonsuit it is replied: That a railroad company, having undertaken to lay down a rail track along a street which is a public road, is bound to lay it down properly, and to keep it in such condition thereafter as to render it safe for those who have the right of passage on, over, or across it. (Sherman & Redfield on Neg. p. 497. Barton v. City of Syracuse, 36 N. Y. 54. McCarthy v. The Same, 46 id. 194. Gillett v. The West. R. R. Co., 8 Allen, [Mass.,] 560. Fash v. Third Av. R. R. Co., 1 Daly, 148. Wooster v. 42d St. R. R. Co., 3 id. 278 ; affirmed Ct. of Ap. Nov. 1872. Cook v. N. Y. Floating Dry Dock Co., 1 Hilt. 436. Carpenter v. C. P. N. and E. R. R. Co., 11 Abb. [N. S.] 416. Mazetti v. N. Y. and Harlem R. R. Co., 3 E. D. Smith, 98, 100.)
    As to the seventh and eighth grounds of nonsuit, it is sufficient to say: That the defendant is bound, in law, to know the condition oí its own property, as to danger or security to citizens having the right to use it, and no notice is necessary. (Griffin v. The Mayor, &c., of N. Y., 9 N. Y. 456, and cases above cited. Norristown v. Mayor, 67 Penn. 000.)
    The last ground upon which a nonsuit was asked, is: “ That if the rail was split prior to the accident, there is no proof but that it was split by the hook and ladder carriage, with which the plaintiff was running, passing over it immediately prior to the accident.” The testimony, at this stage of the trial, as before shown, had proved conclusively, and nothing was subsequently introduced by the defendant to controvert it, that the track in the vicinity of the place of the accident, and the rail causing the accident, were ragged and worn out. If the split was caused by the passage of the hook and ladder carriage, the defendant was guilty of negligence in having a rail capable of being so split in its track; at least it was properly submitted to the jury whether such a state of facts constituted negligence. Besides, the suggestion that the rail was brought to a dangerous state by the passage of the hook and ladder cart, is not warranted by any evidence. On the contrary, such a finding would be impossible in view of the testimony as to the previous state of the rail.
    These several grounds of nonsuit were again urged by the defendant when it rested. It is submitted that the defendant’s testimony furnished additional reasons to the court for the refusal to take the case from the jury. ' This testimony, taken in connection with the uncontroverted testimony, that the rails in the vicinity of the place of the accident were replaced within forty-eight hours of the accident, furnishes the strongest reasons why the case should not have been taken away from the jury.
    II. As to the refusals to charge. It is well settled that the actual damages sustained,- which it is admitted the plaintiff may recover, include even more than is embraced in the language of the charge to the jury. “ He is not only entitled to recover at your hands compensation for the actual pecuniary loss sustained by him, but he is entitled to compensation for the suffering which he has endured through illness, and he is also entitled to prospective damages, such as will compensate him for the losses occasioned by the injury, if, upon the evidence, you should determine that it is of a permanent character in any respect, so as to disable him from the pursuit of his daily avocations.” Selden, J., in Curtis v. The Rochester & Syracuse R. R. Co., (18 N. Y. 534,) says: “In estimating the pecuniary loss in such cases, all the consequences of the injury, future as well as past, are to be taken into consideration.” “The bodily pain or suffering which constitutes an element in estimating damages for bodily injuries, is not confined to that which may have been incurred before the trial, but includes such future suffering as it is reasonably certain from the evidence must result from the injury. ’ ’ (Aaron v. 2d Av. R. R. Co., 2 Daly, 127.)
    III. The damages were not excessive. The plaintiff was confined to his bed for six weeks. He says: “I could not find words to tell what I suffered during those two or three months; I thought I should die before daylight the very night I was hurt. * * * The wound healed very slowly, gathered on the joint, and I had a running sore for months ; it was a long time before I was able to get out upon crutches, and then I was not able to attend to business. '* * * After it had healed it left me lame; I have been lame ever since, and have had a weakness in the joint, so that I cannot endure bodily labor or hard work.” The plaintiff, owing to this wound, cannot accept or retain a position requiring hard work; has not had occupation half the time since the accident; has never regained his health and strength; has always been weak since, and the injured limb is permanently smaller than the other; his expenses have been heavy; he is a man of family, and he has no means of support except his own work. The wound was ragged, need constant attention, was dressed every day; some one sat by his bedside all the time, night and day. His physician says: “Found him suffering from a wound in the foot—a wound made with a blunt instrument of some kind—which had penetrated the foot and seriously injured the bone; went into the bone, producing a very severe punctured wound in the neighborhood of the ankle joint; he was in extreme agony from it, and at that time I feared the result of lock-jaw, as the constant disturbance was very great; his limb withered and became very much smaller than the other one ; I was obliged to visit him for six weeks two to five times in twenty-four hours ; * * * the constitutional disturbance was very great, and the prostration of his system and derangement of it in every way, from which it took him years to recover partially; he ran down to a mere skeleton, and the limb upon which the foot that was hurt belonged was withered, and it will never recover its usual tone and size •; it was six months before he was able to do anything; he cannot bear fatigue upon that leg or foot to work on; during the first month he was in danger of amputation.”
    Damages, to be excessive, must be so excessive as to strike a faff man at first blush, as being beyond all measure unreasonable and outrageous, and such as manifestly show the jury to have been actuated by passion, partiality, prejudice or corruption. They must be flagrantly outrageous and extravagant, or the court cannot undertake to draw the line; they have no standard by which to ascertain the excess. The plaintiff is changed, by reason of this accident, from an “uncommonly healthy man” to one who can do no hard work, who, compelled to trust entirely to his own toil to support himself and family, cannot retain any situation requiring such toil. Hé suffered excruciating pain; he was in danger of losing Ms life, and he is a cripple for life. The damages are not excesssive. (Caldwell v. N. J. Steamboat Co., 56 Barb. 425. McShean v. N. Y. Central R. R. Co., 4th Depart., Gen. Term, Alb. Law Jour. vol. 6, No. 7.)
   By the Court, Ingraham, P. J.

The principles stated by the chief justice of the Court of Appeals, in the case of Wooster v. The Forty-second street and Grand street R. R. Co., (MS.,) are enough for the decision of tMs case, irrespective of the particular facts proved in that case. They are; that a railroad company having a right to lay tracks in a public street is bound to lay them in a proper manner, and to keep them in repair; that if any injury occurs by reason of neglect in either respect, the company is liable; that notice to the defendant of such defect was not necessary if the defect was visible; that an omission to know of such defect was, prima facie, negligence, as much as an omission to repair after notice ; and that the presumption of negligence is complete when it appears that the defects existed, and an injury was caused thereby.

The facts in this case are; that the plaintiff was injured by a splinter of the rail, which projected from it, and by wMch the plaintiff, while doing duty as a fireman, was seriously injured, and probably permanently so. Even if it was necessary to furmsh further proof of negligence, such proof may be found, in this case. After the accident, the rail was examined, and a good many splinters were found, sticking out in different directions. The superintendent of the road said that although there were splits on the rail, so long as the spikes held they were not taken out. And another employee of the defendant said, “we let the rails get pretty well worn out before taken up.”

It is evident, from tMs testimony that the company were in the habit of allowing such defective rails to remain, after they knew of their condition. In such a practice notice would be unnecessary.

[First Department, General Term, at New York,

January 6, 1873.

Ingraham and Learned, Justices.]

If the views above expressed are correct, no error was committed by the justice, in his charge, or in refusing to charge as requested.

The damages are not excessive, when the nature of the injury is considered.

Judgment affirmed.  