
    Albert E. Stebbins, Appellant, v. Hudson Valley Railway Company, Respondent.
    Third Department,
    November 10, 1915.
    Railroad — negligence — injury to horse by catching shoe between main rail and guard rail at crossing— “ center-bearing ” rail within meaning of section 192 of Railroad Law.
    Where, in an action for injuries to a horse sustained by catching one of the calks of the horse’s shoe between the main rail and guard rail at a street railway crossing, it appeared that the rails used by the defendant were ordinary eighty-pound T rails; that there was placed inside its main rail another T rail as a guard rail; that the base of one of the rails was chiseled off and they were then bolted together, leaving a space between the heads of the rails one and one-half inches wide and about four inches deep, which had been filled with gravel to within one and one-half or two inches of the surface of the rails, and that the street between the guard rails and for a space outside the main rail was paved with brick which were fitted tightly against the rails, it was a question of fact for the jury as to whether a T rail was ordinarily known as a “ center-bearing ” rail within the meaning of section 192 of the Railroad Law and also as to whether the defendant was negligent in maintaining such a construction at the crossing.
    Appeal by the plaintiff, Albert E. Stebbins, from a judgment of the County Court of Saratoga county, entered in the office of the clerk of said county on the 21st day of June, 1915, upon a dismissal of the complaint by direction of the court at the close of the case upon a trial before the court and a jury.
    The plaintiff recovered a judgment in a Justice’s Court for $175, and an appeal was thereupon taken to the County Court, the appellant asking for a new trial therein.
    
      F. Andrew Hall, for the appellant.
    
      James McPhillips, for the respondent.
   Lyon, J.:

The defendant owned and operated an electric street railway in the city of Saratoga. The rails used by it were the ordinary eighty-pound T rails in common use by steam railroads. At street crossings there was placed inside its main rail another T rail to serve the purpose of a guard rail. In order to reduce the open space between the heads of the main and guard rails a portion of the base of one of the rails was chiseled off. The rails were then bolted together in order to make a rigid construction, and were spiked to the ties. There was thus left between the heads of the rails a space one and one-half inches wide and about four inches deep. Through this space, which had been filled with gravel to within one and one-half or two inches, or thereabouts, of the surface of the rails, the flange of the car wheel ran. The street crossing between the guard rails and for a space of two feet outside the main rail was paved with brick which were fitted tightly against the rails. While the plaintiff was driving across the defendant’s tracks at a street crossing, one of the calks of the horse’s shoe became wedged in the space between the main rail and the guard rail and the foot was so badly injured as to render the horse practically valueless. The complaint charged negligence upon the part of the defendant in maintaining T rails at street crossings in violation of the statute forbidding the use of center-bearing rails; in failing to suitably cover or guard the opening between the main and guard rails, and in failing to use grooved rails.

Section 192 of the Railroad Law (Consol. Laws, chap. 49; Laws of 1910, chap. 481), formerly section 109 of the Railroad Law (Gen. Laws, chap. 39 [Laws of 1890, chap. 565], as added by Laws of 1892, chap. 676), provided as follows: “No street surface railroad corporation shall hereafter lay down in the streets of any incorporated city or village of this State what are known as ‘ center-bearing’ rails; but in all cases, whether in laying new track or in replacing old rails, shall lay down grooved ’ or some other kind of rail not center-bearing ’ approved by the local authorities. Such grooved or other rail shall be of such shape and so laid as to permit the paving-stones to come in close contact with the projection which serves to guide the flange to the car wheel.” The question as to whether T rails are “what are known as ‘center-bearing’ rails ” was sharply contested upon the trial. The civil engineer called by the plaintiff testified that a T rail was a “center-bearing ” rail and not a grooved or girder rail. The expert witness called by the defendant testified that neither the T rail, nor the girder rail is known to engineers as a “center-bearing ” rail, but that a rail for a two-flange wheel is the rail known as a “center-bearing” rail.

It appeared that two accidents of a similar nature had occurred at this crossing within the preceding three or four months. The T rail as well as the groove rail were exhibited to the jury and the situation at the crossing fully described.

At the close of the evidence the defendant moved for a non-suit upon the grounds, among others, that there was no evidence to justify a jury in finding that the accident was caused through the negligence of the defendant; and that it affirmatively appeared that the type of rail used by the defendant was not an improper construction.

The court granted the nonsuit, remarking, “Ithink that is so; that is the question that is in my mind. The question is whether that is a center-bearing rail. I am satisfied in my mind as to what I should do, that this is not a center-bearing rail. If it was a center-bearing rail it would alter the proposition. I see no negligence in this case, and there is no question for the jury, and the motion is granted.” To this ruling the plaintiff excepted.

We think that under the evidence it was a question of fact for the jury whether a T rail was ordinarily known as a center-bearing rail; also as to whether the defendant was negligent in maintaining such a construction at this crossing.

The judgment should, therefore, be reversed and a new trial granted, with costs to the appellant to abide the event.

All concurred; Smith, P. J., in opinion, in result.

Smith, P. J. (concurring in result):

The experts have differed as to what technically speaking is a center-bearing rail. From a reading of the entire statute, however, it is apparent that the rail proscribed is a rail to which the pavement cannot be laid up plumb upon both sides. As this combination of rails permits of the construction which seems to be contemplated by statute as the proper construction, in my judgment the jury should not be allowed to say whether or not this is technically a center-bearing rail, but the court should hold, as matter of law, that the requirement of the statute in that respect had been observed.

These rails were so shaped and placed together at such distance as to permit the calk of the horse’s shoe to become wedged in and cause this injury. Whether this constituted negligent construction would, in my judgment, be a question for the jury, and the only question which should be submitted to the jury in determining the defendant’s liability.

Judgment reversed and new trial granted, with costs to appellant to abide event.  