Welch v. Syracuse Rapid Transit Railway Co.

Spring, J. (dissenting):

By section 98 of the Railroad Law the duty of keeping “ in permanent repair” that part of-the street between its tracks, the rails of its tracks “ and two -feet in width outside of its tracks ” is imposed upon the defendant. This is a mandatory obligation resting upon the defendant in consideration of its privilege to use the street, and *368is for the benefit of the public. In the language of the court' in (Conway v. City of Rochester (157 N. Y. 33, 38).: “The duty,of keeping-such portion of the streets in permanent repair .is not suggested'or advised, but is commanded. So much of the statute certainly is mandatory. * * * The municipal .authorities are given no authority to relieve .the railroad corporation of the whole or any portion of the needed repairs, or to impose the whole or any portion of the cost upon the abutting owners or the city at larged'’

To be sure’this reparation must be done under the supervision of the municipal authorities. The dominion of the city arises from the exigency of the situation.. The land occupied by. the.defendant is part of the street of the city, and unless the city retain supervision over it the defendant might use different material or construct in a. different manner its part of the street from the residue thereof, and it is essential, therefore, that the determination of what material is to enter into any repairs made and the manner of doing the work shall be vested in the city authorities, but the expense is chargeable'to the defendant. The owner of a city lot is obliged to construct and keep in repair the sidewalk in front of Ids premises, but the material to be used and the method of performing.the labor are .within the control of the municipal authorities. I take it that the owner is liable, to a person injured by falling upon a defective sidewalk in front of such owner’s premises, providing the defect has been of long, standing, even though the city has not interfered or required the defective condition to be remedied.

In 1895 the asphaltina company put in the pavement on this street pursuant to an agreement authorized by the common council of the city. ' By the agreement the asphaltina company was to keep this pavement in repair for five years. • The defendant, of course, knew of the condition of the pavement and acquiesced. in the change inade in it in 1895. The" asphaltina Company is liable for failure to comply with its contract, we may assume,' but that does not absolve either the city or the defendant from complying • .with the duty of keeping the street in repair, which is a .matter of vital concern to those using the street. The burden was imposed upon the defendant to remedy the defect, and if cannot shield itself from liability to 'its passenger because the asphaltina company or the city is responsible for this defect as well as it, It may be it has *369redress against the city as the city may have against the owner of a lot who neglects to keep his sidewalk in repair, whereby injury has resulted, but the person injured, one of the public, is not obliged to in vestigate the relations between any of these parties. - He can base his claim upon the recovery arising because of the violation of the statute.

Nor is it necessary for the city first to notify the defendant to repair before the obligation becomes fixed, (City of Brooklyn v. Brooklyn City Railroad Co., 47 N. Y. 475; Doyle v. City of New York, 58 App. Div. 588; Simon v. Met. Street Railway Co., 29 Misc. Rep. 126.) The duty is imperative as the primary one imposed upon the defendant, and if a defect exists which would render the city liable to respond in damages because of it, the street railroad company which has appropriated the street for its purposes is likewise liable, perforce the statute, even though by its contractual relations with the city the latter may be compelled to indemnify it. The duty is imposed originally upon the city to maintain and keep in repair its streets. The statute, without relieving the city, attached the burden as to a definite part of the street on the railroad company using it. If the latter is relieved from liability to a traveler injured by reason of a defect in its part because the city let a contract to a paving company to construct and maintain the pavement, then the city may also be relieved. Upon proper notice to the defendant such an agreement might be made at any time, as the control of the street is vested in the municipality. If it is done with the knowledge and acquiescence of the defendant, the resulting liability of the latter is the same. This pavement had existed for four years prior to this accident, and so far as' appears there was no outcry against it by the defendant. The argument is made that the pavement for which the present was substituted w'as adequate. It is too late now to raise that question when it did not seek to prevent the repairs made and for four years has acquiesced without a murmur. The time to resist was when its pavement was being removed, for the municipal authorities could not remove it arbitrarily.

The plaintiff was a passenger on the defendant’s car, which was an open one with a running board to enable the passengers to get on and off. At the place where the car was in the habit of stopping *370tliere was a hole in the pavement' about four feet and six inches long, one foot five inches in width, and. three inches in depth in its deepest part: No warning was given to the plaintiff or to any of the passengers as to the existence of this hole, and the plaintiff stepped from the car into it, unaware of its existence, and was injured. I think the verdict of the jury, that, the defendant was negligent in permitting its car to stop at this place for passengers to alight without apprising them of the situation, is supported by the facts, and upon that verdict, as matter of law, the defendant is liable. (Wolf v. Third Ave. R. R. Co., 67 App. Div. 605.)

The judgment, and order should be affirmed, with costs.

Hiscock, J., concurred.

Judgment and order reversed upon questions of law only, the facts having been examined and no error found therein, and new trial ordered, with costs to the appellant to abide the event.