
    Frank Ross, Respondent v. Metropolitan Street Railway Company and the New York Central and Hudson River Railroad Company, Appellants.
    First Department,
    December 28, 1906.
    Negligence — injury from slipping into hole under rail'—evidence on second trial conforming to suggestion in opinion on appeal from first trial — credibility of witness — complaint dismissed as to company merely using tracks — verdict reduced.'
    In an action to recover for personal injuries received by the plaintiffs foot slipping into a hole or rut in a crosswalk adjoining a railway track on a city street and catching under the flanges of the rail,-a verdict based upon evidence that the accident was caused by the worn and unsafe condition of the rail, which caused plaintiff to slip into the hole, will not be reversed on the ground that such evidence was suggested by an intimation in the opinion of the Appellate Division which reversed a verdict for the plaintiff on a forfner trial, where the complaint alleged the defective condition of the rail and the court has charged ■that the fact that no testimony of such defect was offered on the first trial, and the probability that the evidence was given to fit the requirements of the case should be considered on the question of credibility.
    The complaint as to a street railway company which used the tracks should be dismissed where no evidence is offered that it was responsible for a defect in the track or had any right to repair it.
    A verdict of §9,000 is excessive where the injury received was a fracture of the leg below the knee, and the judgment will be reversed unless plaintiff stipulate to reduce it to $5,206.20.
    Ingraham and McLaughlin, JJ., dissented, with opinions.
    Separate appeals by the defendants, the Metropolitan Street Bailway Company and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of 'the clerk of the county of New York on the 26tli day of January, 1906, upon the verdict of a jury for $15,000, which was thereafter reduced by the court, upon stipulation, to $9,000, and also from an order entered in said clerk’s office on the 15th day of May, 1906, denying the defendants’ motions for a, new trial made upon the minutes.
    . Edward 3. O’Brien, for the appellant Metropolitan Street Bailway Company. ' • ,
    
      Charles C. Paulding, for the appellant New York Central and Hudson River Railroad Company.
    
      Albert I. Sire, for the respondent.
   Patterson, P. J.:

Both defendants appeal from a judgment recovered against them in an action for damages for personal injuries alleged to have been sustained by the respondent through their negligence in maintaining a ráilway track and a roadway immediately adjoining such track in an unsafe and dangerous condition to pedestrians crossing the same. • ‘ •

It appeared in evidence .that at about midnight on January 17, 1897, the plaintiff was crossing Tenth avenue at the crosswalk of Little Twelfth street in the city of New York. While so crossing he stepped on the railway track on Tenth avenué and his foot slipped into a hole or rut in the crosswalk adjoining the rail and went under the flanges of the rail; his leg was twisted and he was thrown to the ground in such a manner as to fracture the leg between the ankle and thei knee. <

It was claimed by the plaintiff that the defendants were each of them domestic corporations, controlling and operating cars upon rails laid in the__ public highway on Tenth avenue; that each had .supervision over the .rails and was under legal obligation to keep the same and the highway near and immediately adjoining such rails in good repair and safe condition; that the defendants and each of them neglected so to maintain and keep the rails and liigh- ' way in a safe condition and as a consequence of the unsafe condition of the rails and of the highway under them the plaintiff was injured. The plaintiff recovered a verdict against hath defendants for the sum of $15,000, which was reduced at the trial to $9,000, and from the'judgment entered upon the verdict and from an order denying a motion for a new trial both defendants appeal.

This is the second appeal in the action. Upon a former trial (104 App. Div. 378) it appeared in evidence, and indeed the whole claim made was, that the cause of the accident from which the plaintiff suffered injuries was the existence of the hole in the crosswalk into which his foot slipped. It was held that neither of the defendants was liable for negligence in allowing the highway adjoining its tracks to remain in an unsafe condition. In the opinion of the court on that appeal however, it was suggested that if the injury sustained by the plaintiff had been caused by a defect in the track itself, or any appliance for the use of the road that had been constructed by either of the defendants in a public street, or because such structure or appliance had become out of repair and dangerous, there would then be a cause of action against the corporation which had laid the track or built the structure. On the trial from which the pending appeal is taken, the plaintiff introduced evidence to conform to that suggestion and it was shown that the westerly rail upon which the plaintiff slipped was worn and abraded and in consequence of that defective condition his foot slipped into the hole and was caught under the track and he fell, and as he fell his leg snapped and was broken.

There is nothing in this record to indicate that the Metropolitan Street Bailway Company had ,any other relation to the track or roadway than that which was the subject of consideration on the former appeal. It is not shown that the Metropolitan Street Bail-way Company'was responsible for a' defect in the track or that it did anything more than use the track and it is not proven that it was under obligation to keep it in repair or had- the right to interfere with it. So far as the Metropolitan Street Bailway Company is concerned, the judgment must be reversed, with costs.

A different question, however, is presented as to the liability of the other defendant. There is ample evidence of the fact that the rail on which the plaintiff slipped was in an unsafe condition.. It is true that on the first trial no reference was made in the testimony to that condition, but it is alleged in the complaint that the most westerly rail on the downtown track was maintained in such an unsafe and improper condition that the said rail was raised and the highway depressed adjoining said rail and that the heel of the plaintiff’s shoe wás caught under the rail as he slipped into the hole, which facts were fully proven on the second tidal. It was evidently ■with reference to those allegations of the complaint that the suggestion abode referred to in the opinion on the former appeal concerning the liability of the defendants or either of them was made. It is intimated that the testimony may have been the product of that suggestion of the court ; but on the trial the judge presiding expressly charged the jury that the fact that the plaintiff and his witnesses did not testify at the first trial as to any alleged defect in the rail, and the probability that they may have given such testimony in order, to fit the requirements of the case might be considered as affecting their credibility. . ' .

The unsafe condition of the rail was not testified to by the plaintiff alone, but by other witnesses as well. The complaint was. evidently drawn with relation to such a situation. ,Counsel on the first trial undoubtedly relied upon the condition of the street and the duty of the defendants to maintain it in a safe condition'as sufficient, to impose liability upon them. As the subject of credibility of the Witnesses was fully laid before the jury and as strongly as requested by counsel, we cannot disturb the .verdict on the ground that the aspect in which the case was last presented was a mere afterthought and subterfuge. We, therefore, think that there was sufficient evidence to sustain a verdict against the New York Central and Hudson River Railroad Company. It is plain, upon they whole evidence, that the jury took a most exaggerated' view of the nature of the. injuries sustairied by the plaintiff and ,of what would be sufficient compensation to him. As stated, they returned a verdict of $15,000, which the judge directed should be reduced to $9,000. On. the first trial the plaintiff recovered a verdict of $5,000, .which was quite adequate as compensation. The verdict, even as reduced to $9,000, was grossly excessive,, and the judgment must be reversed and a new trial ordered unless plaintiff stipulates to- redúce it. furthér and to $5,206.20, and if such stipulation is given the judgment Will be affirmed against the New York Central and Hudson. River Railroad Company at that amount, without costs to either party on this appeal.

The judgment against the Metropolitan Street'Railway Com-pony and the order denying its motion for a new trial will be reversed and a new trial ordered as to it, with costs to said appellant to abide the event.

Houghton and Scott, JJ., concurred; Ingraham and McLaughlin, JJ.; dissented.

McLaughlin, J. (dissenting):

I dissent from so much of .the opinion of the presiding justice as holds that the negligence of the New York Central and Hudson Eiver Eailroad Company was the cause of the plaintiff’s injury.

On the former appeal (Ross v. Metropolitan Street R. Co., 104 App. Div. 378) this court held, upon the evidence there set forth, that the injury resulted to the plaintiff because of the hole in the crosswalk, and if that had been in proper condition the plaintiff’s foot could not have been caught between the rail and the pavement, and for that reason the order setting aside a verdict in favor of the plaintiff and granting a new' trial was affirmed.

On the new trial, which resulted'in the judgment now appealed from, the trial court applied the law as laid down in our former decision and correctly charged the jury that if they believed that the accident to -the plaintiff “ happened solely by reason of the hole or defect in the crosswalk, 'then the negligence was not that of the defendants or either of them, and the plaintiff cannot recover.” The evidence upon the last trial, as. to the cause of the accident, was precisely what it was on the former trial, except there was some evidence that the westerly rail “ was worn and abraded,” and by reason thereof the' plaintiff’s foot slipped into the hole when he stepped upon the rail. But the railroad company had a right to lay its tracks where it did, and there is not the slightest evidence in the case to the effect that the rail was not in a proper condition for the purpose for which it was intended. It was not put down for the purpose of having pedestrians walk upon it, but for the purpose of running cars over. There was, therefore, no obligation resting upon the railroad company to see to it, so far as pedestrians were concerned, that the rail was not slippery or “abraded.” Mor was its slippery or “ abraded ” condition the proximate cause of the injury. The proximate cause was the hole in the crosswalk, and for which the railroad company was not liable, according to the charge of the trial’ court and the law, as declared by this court on the former appeal. . ■

The judgment and order appealed from, therefore, should be reversed and a new trial ordered as to both defendants,

. Ingraham,. J., concurred.

As to the appellant the New York Central and Hudson River Railroad Company judgment and order reversed, néw trial ordered, costs to appellant to abide event, unless plaintiff stipulates to reduce judgment as 'entered; including costs;, etc., to $5,206.20, in which event judgment as so modified and order affirmed, without costs.

As to appellant the Metropolitan Street Railway Company judgment and order reversed- and new trial ordered as to it, with costs to said appellant to abide event. Settle order on notice.  