
    Currier v. Ogdensburgh & L. C. R. Co.
    
      (Supreme Court, General Term, Third Department.
    
    July 6, 1889.)
    Appeal—Review—'Weight op Evidence.
    In an action against a railroad company for an accident caused by the overturning of a sleigh while crossing the track on a highway, where the evidence is conflicting as to whether the planking on each side of the rails had been removed, a judgment for plaintiff will not be disturbed on appeal.
    Appeal from circuit court, Franklin county.
    Action by Augusta A. Currier against the Ogdensburgh & Lake Champlain Railroad Company. Judgment for plaintiff. Defendant appeals.
    Argued before Learned, P. J., and Ingalls and Landon, JJ.
    
      Louis Hasbroueh, for appellant. Albert Hobbs, for respondent.
   Ingalls, J.

This action was brought by the plaintiff to recover damages

for an injury which she claims to have received in consequence of being thrown from a sleigh in which she was riding with her husband, who was driving the horse. The plaintiff insists that the evidence justified the jury in finding that the sleigh was overturned, and that she was thrown to the ground and injured, in consequence of the negligence of the defendant in omitting to keep in a safe condition its track where it crosses the public highway known as “Elm Street,” in the village.of Malone; that such omission of duty on the part of the defendant consisted in its allowing the planking next to the rails where they crossed said street to be removed, thereby exposing such rails to the height of from four to five inches above the ties, which created a dangerous obstruction to travel upon the highway, and which caused the sleigh in which the plaintiff was riding to be overturned. While the evidence in regard to the removal of the planks and the condition of the track at the time of the casualty was conflicting, yet we are satisfied that the jury were justified in finding as they did upon that question. Witnesses on the part of the plaintiff testified at the trial that the planks had been removed, based upon their observation and inspection, at the time of the accident, and also before it occurred. To overcome such evidence, the defendant relied upon the testimony of its employes, who respectively spoke with greater or less certainty in regard to the subject. We are convinced that a fair question of fact was presented for the consideration of the jury, and that their determination is supported by the facts and circumstances of the case to such an extent that this court should not interfere with their finding. The question of contributory negligence was, we think, properly decided by the jury. It was submitted by the trial court as a question of fact to be determined by the jury, and in such form as to render the plaintiff chargeable with even the negligence of her husband in the management of the horse, if the jury should determine that any such existed and contributed to the injury, which was certainly most favorable to the case of the defendant. The defendant, having located its road upon the public highway, was legally bound not only to construct the same in such manner as to render it reasonably safe for the traveling public, but was also obligated to maintain the same in that condition. Such obligation was voluntarily assumed by the defendant, for its benefit, and it should faithfully discharge the duty imposed by law. Worster v. Railroad Co., 50 2ST. Y. 203. The doctrine upon this subject is defined in the opinion pronounced in the case referred to by Chief Judge Church in the clear and concise manner so characteristic of the opinions of the learned judge.

'We have carefully examined the affidavits upon the motion for a new trial upon the ground of newly-discovered evidence, and we find no reason to differ with the conclusion of the learned judge who decided the motion. He tried the cause, and became thereby presumably familiar with all the features thereof, and consequently was enabled with facility to understand and determine the force and probable effect of the evidence sought to be put into the case of the defendant upon another trial, if it should be granted. We are not able to resist the impression acquired by an examination of the case, that such motion was rather experimental, and lacking in the merit which should exist to recommend such a motion to the favorable consideration of the court. We are satisfied that no sufficient ground has been established by the defendant which calls for a reversal of the judgment, or for a new trial upon the ground of newly-discovered evidence. The judgment must be affirmed, and new trial denied, with costs. All concur.  