
    Lawrence M. Lowell, Respondent, v. The Central Vermont Railroad Company, Appellant.
    
      Negligence — a plank next the rail taken out of a railroad crossing, to prevent snow and ice from gathering along the rail.
    
    Where a railroad corporation, with a view to preventing the accumulation of ice and snow along its rails and the derailing of its cars, takes out, at a diagonal railroad crossing, a plank ten inches wide lying nearest to and inside of the rail, and the runner of a cutter slips into this space, glides along the projecting rail and is upset, a question is presented for the jury to determine whether in the presence of two duties one was negligently sacrificed by the railroad company for the sake of the other.
    Appeal by the defendant, The Central Vermont Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Franklin on the 15th day of May, 1896, upon the verdict of a jury, with notice of an intention to bring up for review upon such appeal an order bearing date the 11th day of May, 1896, denying the defendant’s motion for a new trial made upon the minutes.
    The plaintiffs ought to recover damages for injuries sustained by himself and done to his horse and cutter, the latter being overturned upon a railroad crossing, which plaintiff charged defendant with negligently maintaining.
    The plaintiff on the 14th of March, 1895, was riding in his cutter drawn by a single horse easterly along the highway in the town of Burke, Franklin county. The highway crossed the single track of defendant’s railroad on grade and diagonally. The crossing, except, in the winter, was covered with planks lying lengthwise between the rails, filling the entire space between the rails, except a space of about an inch and a half inside of each rail, left for the purpose of allowing the flanges of the railroad wheels to pass through, with a plank on the outside of each rail, thus making a proper roadbed for the highway crossing. In the winter the defendant, in order to prevent the snow and ice from so filling and hardening in the inch and a half space between each rail and the plank next to it on the inside, and thus derailing passing cars, took up the plank next to each rail on the inside, and had done so in the winter of 1895 before this injury occurred. The runner of plaintiff’s cutter upon the day named, as plaintiff was driving over the crossing at a speed of about five miles an hour, came in contact with the easterly rail and slid along it for a little distance and then the cutter upset and plaintiff and his horse and cutter were injured. Evidence Avas given by the defendant to the effect that the removal of the planks next, inside of the rails was a proper precaution and had been suggested by experience upon its own and upon the Malone division of the New York Central railroad, both of these companies resorting to this practice.
    The defendant moved for a nonsuit upon the whole evidence, which was denied, and defendant excepted. The jury rendered a verdict for the plaintiff for fifty-five dollars.
    
      Louis Hasbrouck, for the appellant.
    
      Gordon H. Main, for the respondent.
   Landon, J.:

We assume that the runner of the plaintiff’s cutter sank far enough into the space in the crossing formed by the removal of the plank next the easterly rail to bring the runner in contact Avith the rail, thus preventing its gliding smoothly over it, as it would have done if the plank had been in place. The removed plank was about ten inches wide. The diagonal direction of the crossing facilitated the sliding of the runner along the inside edge of the rail, and thus the cutter Avas overturned. Like accidents had previously happened at the same crossing.

While it is uncontradicted that the removal of the plank tended to the safety of the passing trains in the winter, we cannot say upon the evidence as a matter of law that it was proper to remove the plank so as to add ten inches to the customary space for the passage of the flange of the railroad wheels. There is no evidence that less space would not suffice, and it is obvious that the greater the space the greater the liability of in jury to passing sleighs.

It was the defendant’s duty to maintain the highway upon this' crossing in a safe condition for the public use. (Gale v. N. Y. Central & H. R. R. R. Co., 76 N. Y. 594; Bryant v. Town of Randolph, 133 id. 77; Schild v. Central Park, etc., R. R. Co., Id. 446.)

It removed to some extent the customary safeguards and put none in their place.

. We cannot say that the verdict is contrary to the evidence; still less that there is no evidence to support it. It is not a case whore the jury were left, without evidence, to their own speculation, as to what should have been done. Here what was done appears, and whether, in the presence of two duties, one was negligently sacrificed for the sake of the other was a question for the jury to decide.

Judgment and order affirmed, with costs.

All concurred.

Judgment and order affirmed, with costs.  