
    John Doyle, an Infant, by Michael Doyle, his Guardian ad Litem, Respondent, v. The City of New York and The Brooklyn Heights Railroad Company, Appellants.
    
      Negligence — ami within two feet of a street railroad track into which a wagon wheel runs — liability of the city and of the railroad company—effect of the repaving of the street — the Railroad Law applies to existing corporations — duty of the■ railroad company to make repairs before being notified to, do so —judicial notice as towaterstone.
    
    In an action against the city of New York and the Brooklyn Heights Railroad Company to recover damages for personal injuries sustained by the plaintiff in consequence of the existence of a rut adjacent-to the defendant railroad company’s tracks, .into which-the wheel of a truck on which the .plaintiff, was riding sank, causing a cask of beer therein to topple over on him, it appeared that the railroad company’s predecessor, in 1853, obtained a franchise to lay its tracks in the street under a covenant reading: “The pavement to be kept in thorough repair by the said company within the tracks and-three feet on each side thereof with the best waterstone, under the direction of such competent authority as the common council may designate," and that thereafter the Railroad Law (Laws of 1890,.chap. 565) was passed, section 98 of which reads as follows: “Every street surface railroad corporation, so long as it shall continue to use any of its tracks in any. street, avenue or public place in any city or village, shall have and keep in permanent repair that portion of such street, avenue or public place between its tracks, the rails of its tracks and two feet in width outside of its tracks, under the supervision of the proper local authorities, and whenever required by them to do so, and in such manner as they may prescribe." When the franchise was granted the street was paved with water-stone, but it was subsequently repaved with granite.
    
      Meld, tkat!'both the defendants were bound to keep the pavement of the street in such repair as to make-it reasonably safe for persons lawfully using it, and that both were liable to respond in damages for any injury resulting from a failure to do so;
    'That the repaving of the street did not relieve the street railroad company from its duty to keep the pavement in repair;
    That the -enactment of section 98 of the Railroad Law was within the power of the Legislatuie and applied to street railroads previously incorporated;
    That the requirement of said section that the repairs should be made “ under the supervision of the proper local authorities, and whenever required by them to do so, and in such manner as they may prescribe,” did not relieve the company from the duty of making repairs until ordered so to do by the local authorities.
    The court will not take judicial notice of the fact, if it be a fact, that waterstone is cobblestone,
    Appeal by the defendants, The City of New York and another, from a judgment of the Supreme Court in favor of the plaintiff, -entered in the office of the clerk of the county of Kings on the 19th day of February, 1900, upon the verdict, of a jury for $5,000, and also from an order entered in said clerk’s office on the 27th.day •of February, 1900, denying the defendants’ motion for a new trial made upon the minutes.
    
      William J. Garr, for the appellant, The City of New York.
    
      John L. Wells, for the appellant, The Brooklyn Heights Railroad Company.
    
      James C. Gropsey, for the respondent.
   Goodrich, P. J.:

The action is for damages for personal injuries arising from the failure of the defendants to keep a public street in good repair.. The. plaintiff was riding upon (but not driving) a large brewery truck on Myrtle avenue, Brooklyn, when the forward wheel. sank into a rut or hole between, the street surface .railroad tracks, throwing the driver off the truck and toppling over a cask of beer upon the plaintiff’s foot, the great toe of which was so injured as to compel its amputation. The plaintiff had a verdict against both defendants, and both appeal.

The contest arises upon the question whether the city or^he company, or both, are responsible for the condition of the streqt, for it seems to be generously conceded by each of the defendants-jhat the other is liable. There is, however, no necessity for a concession that the accident happened through the neglect of a duty incumbent upon-the'defendants, as there was abundant evidence to support.the finding of the jury in that respect.

The claim of the city is that the company is solely responsible on either of two grounds:

First. The Brooklyn City Railroad Company, the predecessor in interest of. the Brooklyn Heights Railroad Company,' in 1853-obtained the franchise to lay its tracks, upon a covenant reading: “ The pavement to be kept in thorough repair by the said company within the tracks and three feet on each side thereof with the best waterstone, under the direction of such competent authority as the common council may designate.”

Second. Section 98 of the Railroad Law (Laws of 1890, chap. 565, as amd. by Laws of 1892, chap. 676), which reads in part as follows: “Every street surface railroad corporation so long as it shall continue to use any of .its tracks in any street, avenue or public place in any city or village, shall have and keep in permanent repair that portion of such street, avenue or public place between its tracks, the rails of its tracks and two feet in width outside of its tracks, under the supervision of the proper local authorities, and whenever required by them to do so, and. in such manner as they may prescribe.”

The company concedes in its brief that "the obligation of the defendant, therefore, was to keep Myrtle avenue' at the point in .question in thorough repair with the best waterstone, meaning a cobblestone pavement,” and “that the railroad company did not maintain the pavement in thorough repair with cobblestone pavement.”

There- was evidence tending to show, and the jury have found, that the street was so much out of repair at the place in question as to have occasioned the accident, and it is unnecessary to consider any exceptions save those which arise out of the respective duties and obligations of the defendants.

The company contends that its covenant was only to repair the street with waterstone, because the street was paved with that material when the contract was made ; that as subsequently the street wás paved with granite pavement we must assume that the city did the work, and that as the city changed from cobblestone to granite the duty of the company to repair at all was abrogated. It-asks us to take judicial notice that waterstone is cobblestone. This is not such a fact, if it be a fact, as falls within the category of matters of which the court can take judicial notice. In Town of North Hempstead v. Gregory (53 App. Div. 350) we had occasion to consider the subject, and the opinion of Mr. Justice Jenks contains a reference to the authorities. Evidently, under the authorities there cited, the demand of the company that we take judicial notice that waterstone is cobblestone is not well founded. I cannot find the word “ waterstone ” in the Century Dictionary, while in the Standard Dictionary the following appears: “ Water-stones, n. Geol. A division of the Keuper in England.” The former authority defines “ Cobblestone, A cobble or rounded stone; especially, such a stone used in paving,” and “ Cobble, A stone rounded by the action of water, and of a size suitable for use in paving,” but there is nothing more to indicate that the words “ cobblestone ” and “ water-stone ” are synonymous or interchangeable. In Brown v. Piper (91 U. S. 37), cited by Mr. Justice Jenks in the Gregory case, it is said (pp. 42, 43): “ This power is to be exercised by courts with caution. Care must be taken that the requisite notoriety exists. Every reasonable doubt upon the subject should be resolved promptly in the negative.”

This is accentuated in the present case. ' It would have been easy for the company to prove the supposed fact, if it deemed it essenMal to its defense. The absence of such proof compels an examination of lexicons and professional works to ascertain the fact. Under such circumstances, it cannot be said that we are called upon to take judicial notice. ,

But this does not seem to be of very great importance. The primary feature of the railroad company’s covenant was that the company would keep the pavement between the tracks “in thorough repair.” The method of doing it and the material were secondary and incidental. The fact remains that the company did not repair the street with waterstone, as it might and could have done, or with any other material.

In City of Brooklyn v. Brooklyn City R. R. Co. (47 N. Y. 475) this very contract was under consideration, and the court said (p. 478): “ It must be quite susceptible of proof at any time that the state of repair in which the pavement has been kept was or was not thorough ; that the repair was or was not throughout the prescribed extent of space; that- it was or was not of the best water-stone. And when the jdaintiff or defendant should have respem tively established -by proof the negative of either, or the affirmative of all of these propositions, it would have shown a failure to perform, or a.full performance of this condition of the bond. There is nothing left by the contract so indefinite or uncertain, as to extent, as to time, as to mode, as to material or as to place, as that there-should be any reasonable doubt as to just when and where and upon what the defendant was called upon to act.”

It makes no difference how the street Was paved at the time of the contract, or whether a different pavement was subsequently laid by the city. The duty of the company was clear and positive -; it was to keep ■ the pavement between the tracks “ in thorough repair.” The company might use waterstone or any other material to perform its duty, but the duty to keep in repair was imperative and emphatic. There was evidence tending to show that .the street was not in thorough, repair; that the rut or hole in question, as variously described by witnesses, was from twelve to eighteen inches long, from four to six inches deep and from three to four inches wide; that it was adjacent to the rail and a danger to vehicles using the street; that it was necessary after the accident in question- to pry the wheel out of the rut; that the rut had been there for months before the accident, long enough to afford notice of its condition to both defendants, and that wheels of other wagons had previously gone in. The jury were justified in finding that the defendants had not fulfilled their duty of keeping the street pavement in ordinary good condition and repair.

In addition to the franchise covenant, I have quoted a part of section 98 of the Railroad Law. This requirement of that section was well within the power of the Legislature, even though the statute was enacted after the company obtained its franchise. It was said in Mayor v. Twenty-third Street R. Co. (113 N. Y. 311, 317), it (the Legislature) may take away its franchise to be a corporation, and may regulate the exercise of its corporate powers. As it has the power utterly to deprive the corporation of its franchise to be a corporation, it may prescribe the conditions and terms upon which it may live and exercise such franchise. It may enlarge or limit its powers, and it may increase or limit its burdens.”

In Conway v. City of Rochester (157 N. Y. 33) it was held that the duty of keeping the portion of the street between the tracks of a street railroad in permanent repair is by section 98 of the statute not merely suggested or advised, but commanded, and that the party charged with the performance of the duty is specifically pointed out, viz., the street surface railroad company, and that the municipal authorities have no power to relieve the company from making the whole or any part of the needed repairs.

The requirement of section 98, that the work of keeping the pavement in permanent repair, “ under the supervision of the proper local authorities, and whenever required by them to do so, and in such manner as they may prescribe,” does not relieve the company from making repairs until ordered so to do by the local authorities. That provision is for the benefit and protection of the city, and the company cannot shelter itself against its positive duty behind the failure of the city to order or supervise the repairs, for, as we have already said, the primary duty of keeping the pavement in repair is, both by contract and statute, devolved upon the company.

We are not now concerned with any question as to the right of the city to recover of the company the damages growing out of the accident, or with the result as between them of this litigation. It is sufficient here to say that hoth of the defendants were subject to the duty of keeping the pavement in such repair as to make it' reasonably safe for persons lawfully using it, and are both liable to respond in damages for any injury resulting from a failure to do so.

I find nothing in the other exceptions to require reversal, and think the judgment and order should be affirmed, with costs.

Judgment and order unanimously affirmed, with costs.  