Schnell v. Metropolitan Street Railway Co.

Per Curiam :

The complaint was dismissed because the proof failed to show in the opinion of the learned trial justice that the defendant was liable*617prima facia for the defective condition of the track. The proof did show that on Avenue A, between East Nineteenth -and East Twentieth streets there was a single line of double tracks, and that a rail in the down track had been loose and in a dangerous condition for at least a week before the accident. There was no proof that any other company than the defendant operated a street railway line on the block in question. The complaint alleged that the defendant was engaged in the operation of various lines of street railway in the city of New York, one of which lines runs through Avenue A between East Nineteenth and East Twentieth streets; that it was its duty to keep the rails and tracks of its said railway lines in good order and repair; that the rail in question, owing to defendant’s negligence, was loose on the day in question; and that the plaintiff was injured in consequence of the loose rail while lawfully driving a wagon on said Avenue A, between East Nineteenth and East Twentieth streets, upon and across the railway track owned and maintained by defendant. The answer expressly admitted that the defendant did operate the street railway line on Avenue A, between East Nineteenth and East Twentieth streets, but denied that the tracks were in a dangerous condition. The answer contained no other denial material to the point under consideration. We think the ownership of the tracks by the defendant under the allegations of the complaint and in the absence of a denial must be regarded as admitted, and that it was, therefore, error to dismiss the complaint.

Judgment and order reversed and new trial granted.

All concurred.

Judgment and order reversed and new trial granted, costs to abide the event.