
    Fred. R. Gray, Resp’t, v. The Rochester City & Brighton Railroad Co., App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed, October 23, 1891.)
    
    Bailboad—Negligence—Defective tbacks.
    Plaintiff, while riding on the step of a crowded excursion car on defendant’s line, was struck and injured by a car which approached on the other track without his knowledge. It appeared that the tracks were nearer to each other at this place than on other portions of the route, and that by the sinking of one of the rails of the other track the cars pitched toward each other, of which fact plaintiff is not shown to have had knowledge. Held, that" defendant owed a duty to its passengers to- keep its tracks in good yrder, and a failure to do so rendered it liable for the injuries inflicted in ^consequence thereof.
    Appeal from a judgment entered in Monroe county February 27, 1891, on a verdict at the circuit, and from an order denying the defendant’s motion for a new trial made upon the minutes of the court
    
      Theodore Bacon, for app’lt; A. Van Voorhis, for resp’t.
   Macomber, J.

The plaintiff, while riding upon one of the defendant’s open cars, known as an excursion car, was struck by another car passing in the opposite direction upon an adjacent track.

At the time of this accident, which was in the "middle of the afternoon of June 13, 1889, the plaintiff, with many others who crowded the car, was on his way to attend a base ball game in the eastern part of the city of Rochester. He boarded the car opposite his store on Main street, near Cortland, where the same stopped for passengers. The seats of this car ran crosswise. As has already been stated, it was crowded at the time the plaintiff undertook to get on board. At each end of the car was a platform, and these platforms were also filled with standing passengers. A continuous step or rail ran the whole length of the car on either -side, halfway between the platform of the car and the ground. There were six posts on each'side supporting the roof of the car.. The plaintiff was riding upon the north rail or step of the car, being upon the side towards the other street car track, with one foot upon the rail and the other upon the floor of the car, hanging by his hands to the upright bar or post about midway of the car.

After passing East avenue on Main street, and while opposite what is known as the Sibley block, a one-horse car of the defendant was met and was passed without accident, the plaintiff’s attention having been called to it, either voluntarily or through a notice of someone else. Close behind the one horse car was a larger car drawn by two horses, to which the plaintiff’s attention had not been called, and which he did not see and was unaware of its approach. Nor did any of the other passengers similarly situated see the approach of this large car. The last named car, on the north track,-came in contact with the plaintiff. and others, and for the injuries there received by the plaintiff this action is brought.

Evidence was given in behalf of the plaintiff to the effect that at the place where this collision happened the two tracks of the defendant’s road were nearer to each other than at other places along the route, and, also, that by the sinking of the south rail of the north track the cars at the point named pitched toward each other, rendering the position of the persons riding upon the step more dangerous than elsewhere upon the railroad. There is no evidence to show that the plaintiff or any of the passengers upon that rail knew the fact of this specially dangerous condition of the tracks. We are bound to assume upon this appeal, as it seems to us, that the verdict of the jury was, as it well might have been, placed solely upon this ground.

We are not able to say, from the evidence, that had these tracks been placed at the same distance as elsewhere upon the route, and both had been in a safe condition, the plaintiff would have come in contact with the car running upon the north track.

The defendant owed a duty to its passengers to keep its tracks in good order; and a failure to do so rendered it liable for the injuries to the plaintiff which were inflicted without fault on his part. This serious omission of duty in respect to the tracks of the railroad, pointed out above, and upon which our judgment may safely rest, takes the appeal out of the operation of the cases of Coleman v. Second Ave. R. R. Co., 114 N. Y., 609 ; 24 N. Y. State Rep., 566 ; and Craighead v. B. C. R. R. Co., 123 N. Y., 391; 33 N. Y. State Rep., 620, greatly relied upon by the learned counsel for the appellant

It follows that the judgment and order appealed from should be affirmed.

Dwight, P. J., and Lewis, J., concur.  