
    William H. Neff, App’lt, v. New York Central and Hudson River Railroad Company, Resp’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed July 27, 1894.)
    
    1. Nuisance—Railroad bridges.
    A bridge of insufficient height to allow a man standing on a freight car to pass under, maintained across a railroad track of another company, with the latter’s consent, is not per se a nuisance.
    2. Negligence—Telltales.
    A company is not bound to maintain telltales at a bridge, which carries its tracks over the tracks of another company.
    Appeal from a judgment dismissing the complaint.
    
      John W. Lyon, for app’lt; Ashbel Green (A. S. Oassedy, of counsel), for resp’t.
   Cullen, J.

This is an appeal from a judgment entered upon a nonsuit at circuit. The plaintiff was a brakeman in the employ of the Erie Railway Company. At a point some short distance west of Jersey City, in the state of New Jersey, the West Shore Railroad, which is leased and operated by the defendant, crosses the Erie Railway on a bridge which is 18 feet above the rails of the last-named road. There were no “telltales” on the bridge. The plaintiff was on the top of a refrigerator car in a train on the Erie road, and, while the train was passing under the bridge, was struck by it, and severely injured. For this injury he has sued the defendant. The theory upon which it is sought to enforce a liability against the defendant is that the bridge was per se a nuisance, and that the defendant was guilty of maintaining a nuisance. We think this proposition cannot be sustained. The duty of maintaining its railroad reasonably safe for operation by its servants rested on the Brie company, not on the defendant. Undoubtedly, if any trespasser on a railroad caused an injury to its employees or passengers, the trespasser would be liable; but there was no . proof or claim that the defendant was a trespasser. On the contrary, it must be assumed (premising that defendant’s road was constructed after the Erie Railway) that the bridge w'as built with the assent of the Erie company. The question then, is whether a structure across a railroad of height insufficient to allow brakemen to stand on the top of freight cars is per se illegal. There is no statute to be found in this state, nor proof of any in the state of New Jersey, to show that such is the law. The New York statute, chapter 439, Laws 1884, directing that railroads shall place warning signals at every low bridge or structure which crosses the track recognizes the legality of such bridges and structures. It is a matter of common knowledge that the vast majority of bridges and tunnels are of height insufficient to permit persons to stand on the tops of cars while passing under or through them. The reports are full of cases of injuries to railroad employees arising from such bridges or structures, yet with one exception, to be commented on hereafter, we cannot find any authority for the claim1 that it is illegal or negligent to maintain such a structure. In Wallace v. Cent. Vt. Railroad Co., 138 N. Y. 302; 52 St. Rep. 351, the latest case on the subject, where a non-suit was reversed, the negligence of the defendant was placed on the condition and location of the warning signals, but no suggestion was made that the bridge itself was improper. The principal authority relied on for the plaintiff is Dukes v. Eastern Distilling Co., 51 Hun, 605; 22 St. Rep. 833. In that case the plaintiff, a brakeman on the Long Island Eailroad, was injured by a bridge placed by the defendant over the railroad. The case was affirmed by the court of appeals without opinion. 33 St. Rep. 1029. In the opinion at general term it is said: “ The bridge was built witli the consent of the railroad company, and has been enlarged somewhat with like consent. This consent was no defense to the construction of a dangerous nuisance.” .These isolated expressions would doubtless sustain the plaintiff’s claim, but they were entirely obiter. A reference to the printed appeal book shows that here was no such point in the case. At circuit the exact contrary was assumed to be the law. The trial judge charged: “But before the plaintiff can recover you must be satisfied that the structure was unlawfully there,—that is to say, that the company never consented that it should be put there; and, if it did consent, it subsequently revoked that consent, and notified the distillery company to remove it.” The dictum of the distinguished presiding justice in the Dukes Case would seem to conflict with his own opinion in Ryan v. L. I. Railroad Co., 22 St. Rep. 655; 4 N. Y. Supp. 381, where the defendant was held not liable for failure to place warning signals on the interior bridges of a group, of five low bridges. As to the absence of “ telltales ” on the bridge, no statute of New Jersey was proven making it a duty to-maintain sucli signals. If it be conceded that the use of such 'signals is now so general that a failure to maintain them may be ■deemed negligence, even in the absence of statutory requirement, we think the duty of such maintenance devolved upon the Erie Railroad Company, not upon the defendant. The judgment appealed from should be affirmed, with costs.  