
    Mary A. Beebe, Respondent, Appellant, v. Schenectady Railway Company, Respondent, Impleaded with Thomas H. Karr, Appellant.
    Third Department,
    May 5, 1915.
    Negligence—liability of street railway company for negligence of contractor in laying pavement —rails projecting above surface—liability of contractor — duty of contractor to provide light as warning.
    The verdict of a jury in favor of a defendant street railway company charged with negligence in that the street, where it is alleged the company maintained a regular stopping place, was torn up and insufficiently lighted, whereby the plaintiff, intending to board a car, was injured, will be affirmed where it appears that the road was being improved by the municipal authorities under contract; that work had been suspended because of weather conditions; that the city maintained an are light nearby; that the tracks of defendant left the street at this point and that its regular stopping place was a considerable distance outside of the street limits.
    
      It seems, that under such circumstances the city and contractor alone were responsible for any negligence in laying the pavement and that a nonsuit as to the street ear company would have been proper.
    
      It seems, that in an action against the contractor, the court should submit to the jury the question whether or not the defendant in thus leaving the street in an unsafe condition was bound either to fill in, or to place a sufficient light to give warning of the danger, so as to enable a traveler safely to use the street at the point in question if the light furnished by the city was insufficient.
    Reargument of an appeal by the plaintiff, Mary A. Beebe, from a judgment of the Supreme Court in favor of the defendant Schenectady Railway Company, entered in the office of the clerk of the county of Albany on the 27th day of January, 1914, upon the verdict of a jury of no cause of action, and also from an order entered in said clerk’s office on the 20th day of February, 1914, denying plaintiff’s motion to set aside the verdict and for a new trial.
    The judgment in this action entered on the verdict of the jury against the defendant Karr has been reversed. (164 App. Div. 774.)
    
      Henry J. Crawford, for the appellant.
    
      P. C. Dugan, for the respondent.
   Smith, P. J.:

This action was originally brought by the plaintiff against the Schenectady Railway Company and Thomas EL Karr to recover damages for negligence, of which the defendants were both claimed to be guilty in permitting a torn-up street across defendant’s tracks in a public highway, and which was being repaired under a contract between the city of Watervliet and the said Thomas H. Karr. Nineteenth street in the city of Watervliet runs east and west. Twelfth avenue runs north from Nineteenth' street. Opposite Twelfth avenue and upon the south of Nineteenth street the tracks of defendant’s railway run from a private right of way out upon Nineteenth street and turn to the right or toward the east thereupon. Just south of the boundary of Nineteenth street the said cars usually stop for passengers. The city was repaving Nineteenth street. In December, 1912, the street had been cut down about nine or ten inches, so that the rails and part of the ties of the railroad company were projecting above the level of the surface. This paving was being done upon a contract between the city and the defendant Karr. By the terms of the contract the defendant Karr was not allowed to lay asphalt after the weather became too cold for the proper treatment thereof. About the middle of November the paving was abandoned for the season by reason of weather conditions, with this excavation made and not. filled in. There was an arc light suspended above the street upon the corner of Nineteenth street and Twelfth avenue toward the northwest corner of said intersection, which it was claimed was not sufficient to give necessary information to travelers of the condition of the street.

Under the conditions thus stated it seems difficult to find any ground upon which the defendant can be held guilty of negligence. The city had the right, at least with the consent of the railroad company, to contract for the repair of the street, although the railroad company was liable for part of the expense thereof, which would compensate for the pavement laid between its tracks. This would seem to leave with the city and the contractor all responsibility for any negligence occurring in the laying of the pavement. The only contention here is that this was a stopping point for the cars, and that having invited the public to get on the cars at this point the railroad company was required to give a safe opportunity to enter the car. But the stopping point for cars was evidently south of the line of the street a considerable distance, as shown by the evidence, and also as would appear necessary from the fact that before entering the street the curve of the track began as the track rounded into Nineteenth street. If, therefore, the plaintiff had been nonsuited as to the defendant railroad company I am of the opinion that the nonsuit would have to be affirmed. But the case was submitted to the jury, and the jury found under the charge of the court, which in our opinion stated the law as favorably to plaintiff as she could well claim, that defendant was not liable for this injury. We see no reason for disturbing the conclusion of the jury, and are of opinion that the judgment in favor of the railroad company and against the plaintiff as based thereupon must stand.

There is apparently some confusion in the minds of the attorneys as to just the situation in which this case has been left by our former decisions herein, and it may be that we are in part responsible for that confusion. While the jury brought in a verdict of no cause of action as to the railroad company, at the same time it brought in a verdict of $3,000 in favor of .the plaintiff as against the defendant Karr. This verdict, upon appeal to this court, was set aside. The trial judge had charged the jury that it was for them to say whether it was not the duty of Karr to fill in this excavation so far as it might be necessary to render the street safe. One of the judges was of opinion that that charge was properly made. Two of the judges, however, including the writer of this opinion, were of the opinion that it could not be left to the jury to say simply whether this place should be filled in, providing there was sufficient light to give warning of the danger there and to guide travelers who had occasion to use the street at the point in question. In case of a retrial of the cause of action against Karr, the various opinions of the judges on the argument of the other appeal would seem to authorize the court to submit to the jury whether the defendant Karr thus leaving this street in an unsafe condition was not bound either to fill in, or to place such light as should give fair warning of the danger, and as should enable a traveler to safely use the street at the point in question, if the light furnished by the city at the northwest corner of the intersection was not sufficient therefor. The disapproval by this court, which seems to have been made upon the twenty-fifth of November, of the finding of fact that the defendant Karr was guilty of negligence should be construed to be a disapproval of such finding upon the issue as then submitted to the jury.

The judgment and order appealed from should, therefore, be affirmed, with costs.

Judgment and order unanimously affirmed, with costs.  