
    (54 App. Div. 69.)
    HIGGINS v. BROOKLYN, Q. C. & S. R. CO. et al.
    (Supreme Court, Appellate Division, Second Department.
    October 5, 1900.)
    1. Municipal ' Corporations—Obstructions'in 'Street—Contributory -NeO- ' licence of Plaintiff—Question fop. Jury. j-a -A- ,• -i
    -; ¡¡ Where plaintiff, .walking at,night.in- an, unlighted part of g, street, fell, qv.er an ’obstruction which shp did not, see, and of-;whose exis,tepee. ,she. "was unaware,, the question '‘whétiier’ she was guilty of 6'ontrítiütpry '¿egíi-'- ■ génce was to go to the jury. " 1 -•f'u'¡" ■ ' ‘ ■’ ■' ' ■ j 1 ■;
    8. 'Street Railroads—Obstruction in ' ,Stre¿t^'Oónteacto'r”ó:N Work—Lia'-' ¡' '' BILITY FOR ACC10F.NT. ■' ' A- ■■ --.,! , ■ ¡ , , ,, -¡-vAA A- 'Al- -
    i¡ Defendant:,street-railroad-company;received, a permit,fro.m,th,e qity-todgy? track-, .in, a, gtrq.et,, and, employed,"a. contractor, ,to perform, the, work.,. Plaintiff' was’ walking along an upllghted;paft of the street'intifie'dark,' ’áhd" fell over a brote-fié" lying in the1 gutter and’ 'projecting above" thé’leVéí’ of-the i sidewalk; '¡Laying'«of the tracks-'-had progressed several blocks bed the pointi.where" plaintiff,fell, ¡ahdctpe,obstruction; hadiibeen.ip the; gutter. hetwieen ope, and two. weeks. A,,Ley, nights,previously -a polipénian¡ had' fallen, ¿ver thé' samé obstruction, and, had'notified/‘the watchinap 'on ‘th’e1 wofk ‘that it must be removed. . Melé,' that' 'a'disffiiskál’bf the bdmplaintiat’ the close of plaintiff’s case was improper;--since-the''evidence,'1 -unexplained,, was; sufficient- tóihold .the -,company,. ¡irrespective - ofwhether-
    the contractor was, independent of ,the\ company ,op ,not.,,,. v,,.,,,.,/,. ¡ .,,,, . 8. Municipal, , Qorporations—Obstruction- , in, . Street—Notice,. .TupppoF — . Question for Jury. ’ ,, ""1 , ‘ ¡ 1' •' ''
    
    Whére "plaintiff’s evidence," in an‘‘adtibñ agaínst' ttié'tiífy" for' íhjtiiéé' - received 1 by ¡ "fallitig over an obstruction-in the1 street/tended to show that , the; obstruction- had ¡been" in the ¡place,-, where plaintiff fell-between ...one and two, weeks, and that a, policeman.hgd fallen-pyer it a few nights, .previously gild thereupon reported, it t'o^the'.captain, of-his precinct, the, court should have allowed the jury1 to determiné" whether the. city, had coristfuctive'-notice i"df'the obstruction.--"""-' ’ aaaiiA a - 1 '* i - '
    4." Street 1 RaiIÍecoaPs—Lea&e" of 1 "RoAnyLiability1 1 ofo‘1 Les'séb1 ¡for" Tórt1 ' óF ■ Lessor; -a- ■H►8■"■ -■s -- ,--¡"¡i- d-’ i--» o.-i .o-a¡ -.;¡ --¡--i -a
    • Where one -railioad company;tin,,laying >its -¡tracksiithro.ug-h¡a-.city-.street,> an obstruction therein, oyer¡yyhieh¡.playififf fejj.and'yygs,,injured,¡ gnpsubsequently-.leasefl jts road to another corporation, which,, operated the sáme¡ in ‘the absence ti£ ahytlhng further to connect the .lessee'with the accident,1 the complaint was properly dismissed as to such lésdee.'1 '' 1 "
    .Appeal from trial term, Kings county.
    Action by Margaret Higgins, against the. Brooklyn,, Queens County & Suburban Railroad . Company, the Brooklyn Heights. Railroad Com-, pony, and the city of Brooklyn, From a judgment dismissing, the, complaint, plaintiff appeals.
    Reversed.
    Argued before GOODRICH, P, J,, and BARTLETT, WOODWARD, HIRSCHBERG, and JENKS, JJ. ....... , , ,
    E. J. McCrossin, for appellant.
    , John L. Wells, for respondents Brooklyn, Queens' County & Suburban R. Co. and Brooklyn Heights R. Co. " , :
    William Hughes, for respondent city of Brooklyn.
   HIRSCHBERG, J.

On the 1st day of September, 1897, the defendant the city of Brooklyn issued to the defendant the Brooklyn, Queens County & Suburban Railroad . Company a written permit au: thorizing the .railroad company to., lay, a. double-track railroad on Utica avenue, in said city, upon the condition that all the work should be in conformity with the ordinances of the common council,, and in accordance with regulations, adopted by the board of city works covering the department of. city works, and under the direction, of the superintendent of the same. ¡Pursuant to this .permit,, the railroad company contracted with one Morris'Cohen to construct the, tracks upon Utica avenue, and pn the -25th day of September, 1897,' the: work had progressed four or -five blocks, beyond the: comer of that avenue and Park place. The terms of, the contract do not appear in the record. For a period prior , to September 25, 1897, -variously 1 estimated by the witnesses at from one to two weeks, one, of the railroad ties was left in the gutter at this comer between, the crosswalk and the curtyclose to the curb, and projecting an-inch or an inch arid a half. above the curb. On the night1 of September 25th, in the dorky the plaintiff, walking along Utica avenue, with ordinary care, and ignorant of the presence of : the tie, and the obstruction which it occasioned, was thrown into the street by stumbling or tripping over it, and ¡ received physical injuries, to recover compensation for which she brings-this action. One" of the police officers had been thrown by the same tie two -nights before the accident in question, and at once notified the watchman working for the railroad company or the contractor, and also reported the occurrence verbally to the captain of the police precinct.

The nonsuit was improper. Whether the plaintiff was chargeable with contributory negligence was a question for the jury. It was undisputed that the night was dark, no light was on the corner where the obstruction had. been placed, and there was nothing to indicate that its presence would be apparent to a pedestrian not apprised of its existence. The plaintiff testified that she did not see the tie, and that fact is not at all inconsistent with the exercise of the degree of care which the law enjoins. A person may walk through city streets in either the day or night time, in reliance upon the assumption that the corporation whose duty it is to keep the streets in a safe condition for travel performed its duty in that respect, and that he is exposed to no danger from its neglect. Pettengill v. City of Yonkers, 116 N. Y. 558, 22 N. E. 1095. Where the danger is known beforehand or actually perceived at the time, or where the situation and surroundings are such as to indicate that want of knowledge must be the result of want of care, the question of contributory negligence may become one of law. But such is manifestly not the case at bar.

The evidence, unexplained and unrefuted, was sufficient to charge both the railroad company and the city with negligence. There is nothing to indicate that Cohen was an independent contractor, free from the supervision and control of the railroad company, nor would that company in such event be absolved from the consequences of such negligence as is shown herein. Weber v. Railway Co., 20 App. Div. 292, 47 N. Y. Supp. 7; Downey v. Low, 22 App. Div. 460, 48 N. Y. Supp. 207; Ramsey v. Contracting Co., 49 App. Div. 11, 63 N. Y. Supp. 286. As respects the city, it was for the jury to say whether, under the circumstances, the obstruction had remained a sufficient length'of time, to furnish constructive notice, and, if they found on that point in the plaintiff’s favor, the city would be liable, notwithstanding the fact that the original negligence was that of the railroad company or of its contractor. Storrs v. City of Utica, 17 N. Y. 104; Kunz v. City of Troy, 104 N. Y. 344, 10 N. E. 442; Turner v. City of Newburgh, 109 N. Y. 301,16 N. E. 344.

But I find no ground for holding the defendant the Brooklyn Heights Railroad‘Company liable for this accident. It was admitted that since July 1, 1898, that company'had run over the Utica avenue tracks by lease from the Brooklyn, Queens County & Suburban Railroad Company. No other fact appears' to connect the lessee company with the accident, and the plaintiff’s claim that the lease carried with it, of necessity, liability for prior torts of the lessor, is unfounded. Indeed, the plaintiff’s counsel admitted on the trial that, on the proof as made, the Brooklyn Heights Railroad Company was not “in the case.”

The judgment should be affirmed, with costs as to the Brooklyn Heights Railroad Company, and reversed as to the other defendants, and a new trial granted, costs to abide the event. All concur.  