Margaret Higgins, Appellant, v. Brooklyn, Queens County and Suburban Railroad Company and The City of Brooklyn, Respondents, Impleaded with Brooklyn Heights Railroad Company

Margaret Higgins, Appellant, v. Brooklyn, Queens County and Suburban Railroad Company and The City of Brooklyn, Respondents, Impleaded with Brooklyn Heights Railroad Company. Negligence — a railroad tie projecting above the curb, in the gutter between a crosswalk and a curb at a street corner — liability of the city and of the railroad company for an injury caused thereby. In an action to recover damages for personal injuries sustained by the plaintiff, it appeared that the defendant, the City of Brooklyn, had on September 1,1897, . authorized the defendant, the Brooklyn, Queens County and Suburban Railroad Company, to construct a railroad on one of the city streets upon condition , that the work should be done in conformity with the ordinances of the common council and the regulations adopted by the board of city works and under the direction of its superintendent; that the railroad company entered into a contract with one Cohen to do the work, and that for one or two weeks prior to September 25, 1897, a railroad tie had been left in the gutter between the crosswalk and the curb at an unlighted street corner in such a position that it projected an inch or an inch and a half above the curb; that while the plaintiff. Without knowledge of the obstruction, was walking, with ordinary care, in the dark along the street on the night of September twenty-fifth, she stumbled over the tie and sustained the injuries complained of. It further appeared that one of the police officers had been thrown by the same tie two nights before the accident, and had notified the watchman working for the railroad company or the contractor,' and also reported the occurrence to the captain of the police precinct. Held, that it was error to nonsuit the plaintiff; That the questions as to the plaintiff’s contributory negligence and as to the existence of the obstruction for a sufficient length of time to charge the city with constructive notice thereof, should have been submitted to the jury; That if on this latter point the jury found in favor of the plaintiff the city would be liable, notwithstanding the fact that the original negligence was that of the railroad company or its contractor; That the evidence, unexplained and unrefuted, was sufficient to charge both the railroad company and the city with negligence. ■Semble, that even if Cohen were an independent contractor free from the supervision and control of the railroad company, the railroad would not be relieved from liability. Appeal by the plaintiff, Margaret Higgins, from a judgment of1 the Supreme Court in favor of the defendants, the Brooklyn, Queens County and Suburban Railroad Company and the City of Brooklyn, entered in the office of the clerk of the county of Kings on the 10th day of March, 1899, upon the dismissal of the complaint, ■ at the close of the plaintiff’s case, by direction of the court after a trial before the court and a jury at the* Kings County Trial Term. E. J. McCrossin, for the appellant. John L. Wells, for the Brooklyn, Queens County and Suburban Railroad Company and the Brooklyn Heights Railroad Company, respondents. William Hughes, for the City of Brooklyn, respondent. [MAJORITY — Hirschberg, J.:] Hirschberg, J.: On the 1st day of September, 1897, the- defendant, the City of Brooklyn, issued to the defendant, the Brooklyn, Queens. County and Suburban Railroad Company, a written permit authorizing thee railroad company to lay a double-track railroad on Utica avenue in said city, upon the condition that all the work should be in con- ■ formity 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 on the 25th day of September, 1897, the work had progressed four or five blocks beyond the corner of that avenue and" Park place. The terms of the contract do not appear in the record. Fora period prior to September 25, 1897, variously estimated by the witnesses at from one to two weeks, one of the railroad ties was left in the .gutter at this corner between the crosswalk and the curb, close to the curb and projecting an inch or an inch and a half above the curb. On the night of September twenty-fifth, in the dark," 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 for 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 w.hose duty it is to keep the streets in a safe condition for travel has 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.) 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 ease 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. Buffalo Railway Co., 20 App. Div. 292; Downey v. Low, 22 id. 460; Ramsey v. National Contracting Co., 49 id. 11.) 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 id. 344; Turner v. City of Newburgh, 109 id. 301.) But I find no ground for holding the defendant, the Brooklyn Heights Railroad Company, liable for this accident. It was admitted that since July 1,1896, that company had run over the Utica avenue tracks by lease from the Brooklyn, Queens County and 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 plaintiffs counsel- admitted on the trial that on the proof as made the Brooklyn Heights Railroad Company was not “ in the case.” The j udgment 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 concurred. Judgment reversed and new trial granted as to the defendants Brooklyn, Queens County and Suburban Railroad Company and the City of Brooklyn, costs to abide the event; and affirmed as to the defendant the Brooklyn Heights Railroad Company, with costs.