On the 30th day of April, 1899, and for several years prior, the defendant was engaged in operating a street surface railroad in the city of-Syracuse, N. Y. On Warren street, which extends north and south, there were two tracks, and the defendant was accustomed to cause its cars going in either direction upon that street to stop just south of its intersection with Genesee street to permit passengers to enter or alight from the same. At that point, on the westerly side of the street, about twelve feet south of the south crosswalk on Genesee street, there was a hole or depression in the asphalt with which the street was paved, which had existed for several months. It was four feet six inches long; its greatest width one foot five inches, and its greatest depth three inches. The edges were beveled and somewhat ragged. The inner edge was one foot five inches from the outer or westerly rail of defendant’s track.
. About one o’clock in the afternoon of the day in question the plaintiff, who had taken passage in another part of the city upon one of defendant’s open cars, along the side of which there was a running board to enable passengers to get on or off, attempted to leave the car at the place described, and in doing so stepped from the running board into the depression without observing it, in such manner that her ankle was broken and she was thrown to the ground. To recover damages for the injuries thus sustained this action was brought.
Two theories were presented to the jury by the learned trial justice, either of which they were instructed might be made the basis of a recovery against the defendant according as they found the facts: First, that by statute, section 98 of the Railroad Law (Laws 1890 chap. 565, as amd. by Laws of 1892, chap. 676), the duty was imposed upon the defendant of maintaining the street “ two feet in width outside of its tracks ” in a reasonably safe condition, and if the place where the plaintiff stepped in alighting from the car, and which caused her to fall, was within that space and was dangerous, the defendant was chargeable with negligence for having neglected to repair the defect in the pavement; second, that if the *364jury should find, as they might upon the evidence, that the plaintiff stepped into the hole at a point outside of the two-foot strip, if it was dangerous, the defendant was chargeable with -negligence for having stopped its car opposite such place for the purpose of letting-plaintiff off, w-Ithout adopting some means to prevent her from stepping into the hole' in question.
To meet the first proposition the defendant offered in evidence a-resolution adopted by the Common council of the city of Syracuse, on the 22d' day of April, 1895, duly approved by the mayor, by which-' permission was given to the Asphaltina Company of America to take up the pavement then laid on Warren street, on the westerly side of defendant’s- railroad, between Genesee and Washington streets, and at its own expense to. repave the same with, asphaltina, and to keep the • same in repair for five years, to be done in. accordance with plans and specifications of the city engineer and 'subject to the approval of the commissioner of public works-of the city. Prior to the adoption of the resolution, the space between defendant’s- tracks and a strip two feet wide outside of the westerly rail, which included the place in question, was paved with sandstone blocks. Pursuant to the resolution and under the direction and supervision of the commissioner of public works, the two-foot strip of sandstone pavement was removed by the asphaltina company, and it, with the rest of the street west of defendant’s tracks, was paved with.asphalt-ina. This Was doné without cost to the defendant and, so far as appears, without notice to it by the city, although it had knowledge that a change in the: pavement had been made -and the manner in which it was done. From the time the change was made, so far as appears, the defendant did nothing to keep the strip of pavement next to the outside or westerly rail of • its track in Warren street in repair, and in no manner interfered with it. The resolution was excluded and the defendant duly excepted.
I-t is urged on -the part of the, appellant that by the resolution which was offered in evidence, and in view of what was done pursuant to it under the direction of the city, the defendant was relieved from all obligation imposed by section 98 of the- Railroad Law to keep the two-foot ■ strip west of its. westerly rail properly paved or in repair for the period of five years, or at least until the ' city had- notified the defendant to -again assume the responsibility of *365keeping the same in repair; that the city, as it had a right to do, had assumed exclusive control over such pavement, and that, under the circumstances, the defendant had no right to in any manner interfere with it for the period of five- years, during which, the asphaltina company, in consideration of being permitted to lay the pavement, agreed to keep it in repair. It is evident the' purpose of the resolution was to enable the asphaltina pavement to be tested to ascertain its durability and wearing qualities, and it is apparent, if the defendant or any other corporation could make repairs at will, such test would be useless and of no practical benefit either to the asphaltina company or to the city.
By the charter of the city of Syracuse (Laws of 1885, chap. 26, § 30) the mayor and common council are given authority to lay out, make, open, regulate, repair and improve highways and streets, and by section 138 (as amd. by Laws of 1888, chap. 449) the common council is given authority to order the construction and repair of pavements, and defray the expenses thereof by assessment upon the abutting property owners. Section 98 of the Railroad Law does not in any manner deprive the city authorities of any of the powers conferred upon them by the charter, but on the contrary, by its terms, provides that a railroad' corporation occupying the streets of a city shall keep in permanent repair the portion of the streets "between its tracks, the rails of its tracks, and two feet in width outside of its tracks, “ under the supervision of the proper local authorities and whenever required by them to do so, a/nd in such manner as they may prescribe? The statute expressly reserves to the local authorities the right of control over any and all portions of the street, that "between and adjacent to the tracks, as well as to any other part. The city of' Syracuse had the right, acting through its officers or through, any other agency, to do with the pavement in question ■precisely as it saw fit, provided it did not unnecessarily and improperly interfere with the rights of the defendant. It had the right to withdraw from the defendant the power to in any manner interfere with the pavement upon Warren street, or to relieve it from the duty imposed by statute, provided other means were adopted which would better or equally well protect the interests and rights -of the public. " *
So far as appears, at the time the resolution in question was *366adopted, the pavement upon Warren streét adjacent to defendant’s tracks was in perfect repair. The defendant had. fully performed the obligation imposed. upon it by statute. The city,. we must assume,, for a legitimate, and useful purpose, ordered such pavement to be removed; directed that, another kind be laid in its place by a party in no manner Connected with .the defendant, and directed that such party'have control of and be responsible for its condition for a period of five years. By such action on the part of' the city, the defendant was relieved from the obligation during .that time of keeping-in repair the portion of the street in question.
In Snell v. Rochester Railway Company (64 Hun, 476) it was held that- the defendant was not liable for the dangerous condition ' of the street between its tracks, arising from the defective condition of a sewer which had been constructed under the authority of. the city. -
The resolution was competent as bearing upon the' question of defendant’s negligence, even if it was not relieved of its obligation to keep the street in repair by reason of the city’s action in the premises. It is apparent that the comparatively slight- depression in question would not impress the defendant as being dangerous so forcibly when it knew or had reason to believe that the municipality, through the asphaltina company, had assumed responsibility for its repair, and did not so consider it. The defendant had a right, in determining whether or not the defect was. dangerous, to take into consideration the fact that the city authorities had taken control of the street, and to assume that they did not regard it' as being in a dangerous condition, because of the fact that they had -taken no steps to repair or cause the same to be repaired. The jury Was entitled to have before ' it ■ any and all facts which would influence the conduct of a person of ordinary care and prudence in the premises. It had a right to say, not only whether the defendant was negligent in permitting the defect described to exist in the street, as an independent proposition, but also to say whether it was -negligent in so doing, in view of the fact that, by the resolution which was offered in evidence, the city had contracted with the áspháltiña company- that -said company, and not. the., defendant, should keep, such street in repair, under the direction and ¡supervision of the municipal officers. . . A,
*367We think the exclusion of the resolution was error, and that it was of such substance as to • require the reversal of the judgment. It is impossible to say from the record upon which of the theories presented by the learned trial court the jury found the defendant guilty of negligence. The evidence was conflicting as to whether or not the plaintiff stepped into the hole outside or inside of the two-foot strip. If the jury found that she stepped inside it was instructed, as we have seen, that it might find the defendant guilty of negligence because it failed to discharge the duty imposed upon it by the section of the Railroad Law referred to, and for aught that appears, that was the basis of the verdict rendered. The resolution should have been received in evidence, at least for the purpose of enabling the jury to say whether or not, in view of it and under all the circumstances, the defendant, through its agents, was negligent in not determining that the defect in the street was dangerous, and 'in not repairing it.
Having reached the conclusion that the exclusion of the resolution offered by-the defendant constitutes reversible .error, we' deem it unnecessary to determine whether the defect in the pavement —- assuming that the city of Syracuse was responsible for it — was of such a character as to charge the defendant with negligence because it stopped its car at that place to permit the plaintiff to alight therefrom. • ■
It follows that the judgment and order appealed from should be reversed and a new trial granted, with costs to the appellant to abide event.
Judgment and order reversed upon questions of law only, the facts having been examined and no error fo'und therein, and new trial ordered, with costs to the appellant to abide event.
Williams and Davy, JJ., concurred; Spring and Hiscock, JJ., dissented.