I dissent from so much of .the opinion of the presiding justice as holds that the negligence of the New York Central and Hudson Eiver Eailroad Company was the cause of the plaintiff’s injury.
On the former appeal (Ross v. Metropolitan Street R. Co., 104 App. Div. 378) this court held, upon the evidence there set forth, that the injury resulted to the plaintiff because of the hole in the crosswalk, and if that had been in proper condition the plaintiff’s foot could not have been caught between the rail and the pavement, and for that reason the order setting aside a verdict in favor of the plaintiff and granting a new' trial was affirmed.
On the new trial, which resulted'in the judgment now appealed from, the trial court applied the law as laid down in our former decision and correctly charged the jury that if they believed that the accident to -the plaintiff “ happened solely by reason of the hole or defect in the crosswalk, 'then the negligence was not that of the defendants or either of them, and the plaintiff cannot recover.” The evidence upon the last trial, as. to the cause of the accident, was precisely what it was on the former trial, except there was some evidence that the westerly rail “ was worn and abraded,” and by reason thereof the' plaintiff’s foot slipped into the hole when he stepped upon the rail. But the railroad company had a right to lay its tracks where it did, and there is not the slightest evidence in the case to the effect that the rail was not in a proper condition for the purpose for which it was intended. It was not put down for the purpose of having pedestrians walk upon it, but for the purpose of running cars over. There was, therefore, no obligation resting upon the railroad company to see to it, so far as pedestrians were concerned, that the rail was not slippery or “abraded.” Mor was its slippery or “ abraded ” condition the proximate cause of the injury. The proximate cause was the hole in the crosswalk, and for which the railroad company was not liable, according to the charge *512of the trial’ court and the law, as declared by this court on the former appeal. . ■
The judgment and order appealed from, therefore, should be reversed and a new trial ordered as to both defendants,
. Ingraham,. J., concurred.
As to the appellant the New York Central and Hudson River Railroad Company judgment and order reversed, néw trial ordered, costs to appellant to abide event, unless plaintiff stipulates to reduce judgment as 'entered; including costs;, etc., to $5,206.20, in which event judgment as so modified and order affirmed, without costs.
As to appellant the Metropolitan Street Railway Company judgment and order reversed- and new trial ordered as to it, with costs to said appellant to abide event. Settle order on notice.