
    Charles J. Herdt, Resp’t, v. The Rochester City & Brighton Railroad Company, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 21, 1892.)
    
    1. Railroad—ÍTeuligence—Defective tracks.
    Plaintiff, while riding on the step of a crowded car on defendant’s line, was struck and injured by a car which approached on the other track. It appeared that the inner rails of the two tracks were nearer to each other at this point than was safe for the passage of cars, and that they were depressed by reason of the sinking of the ground, of which fact plaintiff had no knowledge. Held, that defendant owed a duty to its passengers to keep its tracks in good order, and a failure to do so rendered it liable for the injuries inflicted in consequence thereof.
    3. Same—Evidence.
    In such case, plaintiff was asked on direct examination, “ Were you aware that there was any danger in riding upon that step ?” and answered : “ I was not. I had observed other people riding in that position at various ether times.” Held, that such evidence was competent.
    Appeal by the defendant, The Rochester City & Brighton Railroad Company, from a judgment of the supreme court, entered in the office of the clerk of Monroe county on the 9th day of May, 1892, on a verdict of a jury at the circuit, and also from an order of the same date denying its motion for a-new trial.
    
      Charles J. Bissell, for app’lt; Eugene Van Voorhis, for resp’t.
   Macomber, J.

This action, which was brought to recover for personal injuries received by the plaintiff in the collision of two-horse cars operated by the defendant upon adjacent tracks on Bast Main street in the city of Rochester, by which several passengers, on the east bound car were brushed off and hurt, resulted in a verdict for the plaintiff. The evidence returned on this appeal isj, in all material respects, the same as that in another case which has been before this court, growing out of the same accident.

Though this cause has been as elaborately argued as was the former one, we must adhere to our opinion heretofore expressed in the antecedent case of Gray v. The Rochester City & Brighton Railroad Co., 61 Hun, 212; S. C., 40 St. Rep., 715; 15 N. Y. Supp., 927. It is therefore unnecessary to re-assert or to elaborate the views heretofore expressed arising upon the principal question.

An additional ground for the reversal of this judgment is urged by the learned counsel for the defendant, for the reason that in this instance, even if not in the case of Gray, the plaintiff was guilty of carelessness which contributed to the production of the injuries which he received. But we do not perceive that there is any substantial difference in the two cases in this regard, though, as is shown in this case, the plaintiff was further in front, upon the outside of the rail or step of the car than was dray. But this circumstance does not, in any legal sense, charge the plaintiff with co-operative negligence. He was proceeding to a ball game, and though knowing that the car was well loaded, he hailed it for a ride, and thereupon it stopped and took him aboard in what, apparently, was the only space left for a passenger. It is not shown that either he, or any other passenger, from any previous knowledge or notice, was chargeable with the special and particular duty of avoiding a collision with the approaching car from the east. The plaintiff did not know of the existing fact that the inner rails of the two tracks were nearer to each other at this point than was safe for the passage of cars, nor did he know that they were depressed by reason of the sinking of the ground, so that the upper portions of the cars were tilted over towards each other at the point where he was injured. Yet these two things, both under the exclusive control of the defendant, produced the collision. Inasmuch, therefore, as the plaintiff appears to have occupied the space allotted to him in a reasonably prudent and careful manner, without any reason to apprehend this particular danger, we think the argument now addressed to us has really been disposed of in our previous decision in the Gray case.

But there is an exception taken to the testimony of the plaintiff upon which counsel relies, to some extent, for a reversal of the j udgment. Though the same evidence was given in the case of Gray, yet the exception thereto was not by us deemed of sufficient moment to animadvert upon; but inasmuch as it has been re-argued to us with much earnestness by counsel, we will state what .seems to us to be a full, though obvious answer to the position •taken. The question and answer complained of were these:

“ Q. Were you aware that there was any danger in riding upon that step ? * * * A. I was not; I had observed other people riding in that position at various other times.”

It is argued that this testimony left the case with the jury, not strictly upon their notion of the propriety of the defendant’s conduct in the face of real and apparent danger; but rather that the plaintiff should he exonerated from, blame if he did not see or appreciate the dangerous situation. It is manifest, however, that the witness intended to, and did actually speak in this regard of the particular danger of which he had no knowledge or information until after the collision, namely, the closeness and depression, of the two inside rails of the double tracks of the railroad. Undoubtedly, he assumed, in riding upon the rail or step of the car, the ordinary hazards pertaining to such position, but not the risk caused by the gross negligence of the defendant in suffering its-tracks to be so laid as thus to throw a passing car in collision, with passengers riding on another car going in the opposite direction on an adjacent track.

We think the judgment and order appealed from should be affirmed.

Judgment and order appealed from affirmed.

Dwight, P. J., and Lewis, J., concur.  