We assume that the runner of the plaintiff’s cutter sank far enough into the space in the crossing formed by the removal of the plank next the easterly rail to bring the runner in contact Avith the rail, thus preventing its gliding smoothly over it, as it would have done if the plank had been in place. The removed plank was about ten inches wide. The diagonal direction of the crossing facilitated the sliding of the runner along the inside edge of the rail, and thus the cutter Avas overturned. Like accidents had previously happened at the same crossing.
*220While it is uncontradicted that the removal of the plank tended to the safety of the passing trains in the winter, we cannot say upon the evidence as a matter of law that it was proper to remove the plank so as to add ten inches to the customary space for the passage of the flange of the railroad wheels. There is no evidence that less space would not suffice, and it is obvious that the greater the space the greater the liability of in jury to passing sleighs.
It was the defendant’s duty to maintain the highway upon this' crossing in a safe condition for the public use. (Gale v. N. Y. Central & H. R. R. R. Co., 76 N. Y. 594; Bryant v. Town of Randolph, 133 id. 77; Schild v. Central Park, etc., R. R. Co., Id. 446.)
It removed to some extent the customary safeguards and put none in their place.
. We cannot say that the verdict is contrary to the evidence; still less that there is no evidence to support it. It is not a case whore the jury were left, without evidence, to their own speculation, as to what should have been done. Here what was done appears, and whether, in the presence of two duties, one was negligently sacrificed for the sake of the other was a question for the jury to decide.
Judgment and order affirmed, with costs.
All concurred.
Judgment and order affirmed, with costs.