
    Garrett Neagle, as Administrator, etc., of Garrett Neagle, Jr., Deceased, Respondent, v. The Syracuse, Binghamton and New York Railroad Company, Appellant, Impleaded with The Delaware, Lackawanna and Western Railroad Company, Defendant.
    Fourth Department,
    November, 1905.
    Negligence^—engine derailed by accumulation of ice between the rails.
    It is the duty of a railroad company to remove ice which has accumulated between the rails so as to enable the flanges of the wheels to hold the engine upon the rails; and when, after knowledge that such defect exists, the railroad company sends out an engine and plow to remove snow which has fallen on such ice, it is liable for the death of a fireman who is killed by the derailing of the engine caused by such obstruction. Such risk is not assumed by the fireman.
    Nash, J., dissented.
    Appeal by the defendant, The Syracuse, Binghamton and New York Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the lltli day of April, 1904, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office . on the 20th day of April, 1904, denying the said defendant’s motion for a new trial made upon the minutes.
    
      A. J). Jenney, for the appellant.
    
      Frank G. ¡Sargéñt, for the respondent.
   Williams, «T.:

The judgment and order should be affirmed, with costs.

The action is to recover for the death of plaintiff’s intestate-alleged to have, been caused by defendant’s negligence. The deceased was a fireman in the employ of the- defendant and was' killed iri an accident which occurred February 20/1902.

A snowplow was being driven by two engines. ■ The plow and .the front engine were derailed and tipped over. The deceased was fireman on the derailed engine. The plaintiff claimed the cause of the accident was the defective condition of the roadbed and track at, the place where the same Occurred-; that there was a bed. of thick, solid ice between the rails filling the space to the top of the rails, and the ice was so firm, that no depression was made in it by the flanges of the plow and engines; that this condition had existed for more than a week before the accident.; that employees of the defendant, about a week before the accident, had cleared all the snow off,, and exposed this condition of the ice to view,. and it had remained so exposed for five or six days before a snowfall, again covered it up; that during the time the ice remained so exposed to view, the trackwalker and inspector of defendant charged with the ■duty of seeing that the track was in a safe condition, had passed over and seen the ice several times each day, but no effort had been made to remove-the ice or cure the defective condition of the track's ;, that two days.before the accident: new snow had fallen and covered the ice from eighteen inches to two feet in depth, light snow, and that the accident occurred when- the plow was being used to remove this snow. A great deal of evidence was given on the trial, and. .the jury were justified' in finding from such evidence the facts here stated as claimed by the plaintiff. '. ■ . ,

These facts- being established, the jury were justified in finding the defendant guilty of negligence which caused the death of-plaintiff’s intestate. ■ ’

The roadbed and tracks were in a defective and dangerous condition. Defendant had notice of such condition, made no effort to repair the defects, but sent this train out to run over it, and the accident was the result.

It is not a case of ice covered by deep snow, unknown to defendant and discoverable only by removing the snow with the plow. The snow had been removed, and the ice exposed to view. ■ It had remained so' exposed for a week undisturbed, though defendant’s track inspector had passed over it frequently and knew all about it. It was not.a safe roadbed or tracks for engines to be run over. It was the duty of defendant to remove the ice from near the rails so as to enable the flanges of the wheels to hold the plow and engine upon the rails, or else to discontinue the use of the track. Failure to perform this duty constituted negligence, rendering the defendant. liable for the death of the deceased.

This was not a risk assumed by the deceased, and there is no claim made that he was guilty of contributory negligence. The verdict was, therefore, justified by the evidence, and the questions remaining for consideration are the' various exceptions to the evidence and the charge.

We have examined such exceptions and find none which are so erroneous as to call for a reversal of the judgment and order appealed from.

All concurred, except Nash, J., who dissented.

Judgment and order affirmed, with costs.  