
    James Tierney, App’lt, v. City of Troy, Resp’t.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed June, 1886.)
    
    1. Municipal corporation—Liability op city for damages resulting-prom DEFECTIVE BRIDGE OVER RAILROAD.
    Where in an action for damages for injuries resulting to a miner while walking upon a bridge over a railroad forming part of a public highway within the city of Troy (the bridge being out of repair), a non-suit was granted. Held, that assuming that the locus in quo was at the time of the accident a public highway within said city, it was error to direct a non-suit on the ground that the railroad company and not the city were liable.
    
      2. Same—Liability op bailboad does not believe city.
    The statutory obligations of a railroad company to restore streets, crossed by it in the process of construction, to their former state and to keep in, good repair bridges which it has been obliged to erect for that purpose does not relieve _ tile municipality from the obligation to keep such bridges in a safe condition for public travel, nor from liability to the person susstaining injuries by reason of its defective condition.
    Motion for a new trial upon a case and exceptions ordered heard in the first instance at general term, non-suit having been ordered at the Rensselaer circuit.
    The plaintiff sues for the value of the services of his minor son who was injured by falling through the bridge crossing the railroad tracks of the Union Railroad Company in Liberty street, in.the city of Troy. The non-suit was granted on the ground that it was not the duty of the city but of the railroad company to keep the bridge in repair.
    
      Henry A. Merritt, for app’lt; JR. A. Parmenter, for resp’t.
   Parker, J.

The plaintiff was non-suited in the court below, as appears by the remarks of the justice presiding, upon the ground that the Union Railroad Company, and not the city of Troy, was hable for the neglect to repair the bridge through which the plaintiff’s little son fell. That the liability to keep a bridge forming part of a highway over a railroad track in repair is, by statute, enjoined upon the railroad company, and for any damages sustained by reason of their failure so to do the company must respond, and not the defendant.

• In the consideration of that proposition here, it must be assumed, as it was by the court below, that the locus in quo was, at the time of the accident, a public highway within the limits of the city of Troy; that prior thereto the Union Railroad Company constructed its road across said highway, below grade, and by reason thereof was compelled to, and did, build a bridge over its road, which bridge formed a part of the highway or street. The court was undoubtedly right in holding that the railroad company was, by statute, required to keep the bridge in repair, and, therefore, became primarily liable to respond to the plaintiff, but we think the court erred in holding that by reason thereof the defendant was absolved from liability. Municipal corporations, such as the defendant, are required to keep the streets within their corporate limits in a safe condition for public travel, and the duty to make necessary repairs is imperative and ministerial. Hyatt v. Rondout, 44 Barb., 385; Clark v. City of Lockport, 49 Barb., 580.

If this bridge then formed a portion of one of defendant’s public streets or highways, it was bound to keep it in repair, unless the statutory liability of the Troy Union Railroad Company to “maintain such bridge and keep it in good repair,” relieves the defendant from all liability to the public as to so much of the street as the bridge constituted.

It is well settled that the statutory obligations of a railroad company to restore streets, which it crosses in the process of construction, to their former state, and to keep in good repair a bridge which it may be obliged to erect for that purpose, does not relieve the municipality from the obligation to keep such bridge in a safe condition for public travel, nor from liability to the person sustaining injuries by reason of its defective condition. Wilson v. City of Watertown, 3 Hun, 508; People ex rel. Markey v. City of Brooklyn, 65 N. Y., 349.

There is no hardship in that rule, because the city had ample authority to compel the railroad company to make needed repairs. People ex rel. Schaghticoke v. The Troy and Boston R. R. Co., 37 How., 427; and in Wilson v. City of Watertown (cited, supra), the court, at page 513 of opinion, say: “But if the injury of which the plaintiff complained was caused by their (i. e., the railroad company’s) neglect of duty, they are primarily Hable, and in case of a recovery against the defendants, they wiH have a right of action against the railroad company.”

Assuming that the place where the injury occurred was a pubHc street of the city of Troy, the non-suit was clearly error, and upon the question as to whether or not it was a public street, the evidence entitled the plaintiff to go to the jury as requested by him.

The order granting a non-suit must be reversed and a new trial granted, costs to abide event.

Bocees, P. J., and Landon, J., concur.  