The judgment and order should be reversed and a new trial granted, with costs to the appellant to abide event, upon questions of law only, the facts having been examined and no errors found therein.
The action was brought to recover damages for injuries to the plaintiff alleged to have been caused by the negligent and wrongful acts of the defendant. The court refused to submit the qudstion of defendant’s negligence to the jury, but'submitted the question of the defendant’s wrongful act, the maintenance of a nuisance,-to the jury, and a verdict was rendered for the plaintiff.
We think there was no basis in the evidence for the submission of this question, or the finding by the jury that the accident was the result of the maintenance of a nuisance by the defendant at the time and place of the accident. The case of McKinney v. N. Y. C. & H. R. R. R. Co. (66 App. Div. 207; affd., without opinion, *18174 N. Y. 516) involved an accident occurring at this same crossing. That action, like the present one, was brought for negligence and wrong in maintaining a nuiscmoe. 'The condition of the crossing itself was the same in both cases, and there was no substantial difference in the surroundings. In that case the horse took fright at the escape of steam from an engine near- the crossing. In this case the fright of the horse was caused by a freight car standing just at the margin of the highway. In that case the plaintiff was riding in a cutter after dark. In this case the plaintiff was riding in a wagon in the .daylight. . ' .
W e held in that case that, the crossing was reasonably safe; that the defendant was guilty of no neglect of duty in keeping it in such reasonably safe condition. We are unable to see how it can be held, as it. was by the trial court, that while there was no negligence as to the crossing, while it was kept in reasonably safe condition for public fravel, the jury might nevertheless find it to be a nuisance.
If the defendant had performed its full duty as to this' crossing, its condition clearly was not a nuisance, and if the crossing itself was not a nuisance, the presence of the freight car, just at the margin of the street, did not make it a nuisance. The MoKinney case, having been affirmed by the Court of Appeals, should have been followed by the trial court in this case, and must be followed by this court on appeal.
The judgment and order should, therefore, be reversed .and a new- trial granted.
All concurred.
Judgment and order reversed and new trial erdered, with costs to the appellant to abide eveilt upon questions of law only, the facts having been examined.and no error found therein.