
    Addie L. Wiley, Appellant, v. W. Judson Smith and Edward B. Judson, Jr., as Receivers of The Syracuse Street Railroad Company, Respondents.
    
      Negligence — injury from the projection of a rail of a street railroad, not at a street crossing—erroneous charge.
    
    In an action brought, against the receivers of a street railway company to recover damages for personal injuries alleged to have been sustained by the plaintiff, " while attempting to cross a street, in consequence of the dangerous projection above the surface of the street of a rail of the defendants’ tracks, at a point where there was no defined crossing, it is erroneous for the court to charge the jury that the defendants cannot be held guilty of negligence unless'the jury should find that they might reasonably have anticipated that people were liable to cross the street where the plaintiff crossed, and that if the defendants could not have anticipated that the plaintiff was liable to take the route she did, the verdict should be in favor of the defendants.
    Appeal by the plaintiff, Addie L. Wiley, from, a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Onondaga on the 16th day of December, 1896, upon the verdict of a jury, and also from an order entered in said clérk’s office on the 31st day of December, 1896, denying the plaintiff’s motion for a new trial made upon the minutes.
    The action was brought to recover damages for personal injuries resulting from the alleged negligence of the defendants in permitting one of the. rails of the Syracuse Street Railroad Company in Alvord street, where the plaintiff claimed that she fell and was injured, to remain in an unsafe condition, by allowing the rail at that point to exist at a dangerous elevation above the surface of the street, thereby making it dangerous for the use of the traveling-public. The answer was a general denial of negligence on the part of the defendants, and an allegation that the plaintiff’s injuries were caused by reason of her own fault, carelessness and negligence.
    
      Frank C. Sargent, for the appellant.
    
      Stone, Gannon & Petit, for the respondents.
   Pee Curiam :

Under the evidence in this case, it was error for the court to charge that the defendants were not guilty of negligence, unless the jury should find that they might reasonably have anticipated that people were liable to cross the street where the plaintiff crossed ; and that, if these defendants could not have anticipated that the plaintiff was liable to take the route she did,'the verdict should be in favor of the defendants.

Under the situation disclosed by the evidence, the plaintiff had a right to assume that the part of the street where she crossed was reasonably safe, and the inquiry as to her acts was whether, under the circumstances of the case, she exercised due care and caution. (Moebus v. Hermann, 108 N. Y. 349; Brusso v. City of Buffalo, 90 id. 679.) '

There was no defined street crossing for passengers at the place of the accident, and the defendants had no right to occupy the street where plaintiff crossed, so as to make it dangerous to cross at that point at all times. (McClain v. Brooklyn City R. R. Co., 116 N. Y. 469.)

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.” (Schild v. C. P., N. & E. R. R. R. Co., 133 N. Y. 449.)

The obligation rested upon the railroad company to lay its tracks in the street in a proper manner and to keep them in repair ; and if in this case that obligation has not been met and fulfilled in either or both of these respects, and if the injury complained of resulted to this plaintiff by reason of such neglect on the part of the company, then these defendants are liable in damages for such injury. (Worster v. Forty-second St. & Grand St. Ferry R. R. Co., 50 N. Y. 202.)

These are the rules which should have been submitted to the jury as its guide in the consideration of this case; and, because of the failure to submit the evidence in this case to the jury in connection with instructions that it should be guided by such rules in deciding the questions submitted to it, error was committed jn-ejudicial to these appellants.

For such errors which are. presented by the exceptions in this case, the judgment and order should be reversed and anew trial ordered, with costs to the appellants to abide the event of the action.

Judgment and order reversed and a new trial ordered, with costs to the appellants to abide the event.  