I dissent as to the reversal of the judgment against the Cohoes Railway Company. • In common with the United Traction Company the Cohoes Railway Company operated its cars through the city of Albany over the track of the former company. That track formed a continuous line with the track of the Cohoes Railway Company, and was permanently used by the latter company under some arrangement made with the other company. I do not think that a railroad Company, under such circumstances, using the track of another company, is at liberty to take absolutely no precautions for the safety of its employees and then be permitted to evade its responsibility- or its duty to such employees of furnishing them á safe place in which to work, by the argument that it had no right to inspect or repair the track of the other company. It should, by a traffic agreement with the other company, reserve to itself such right, or at least. affirmatively place such right upon the other company.
The precise' question here involved was decided in the case of Wisconsin Central Railroad Company v. Ross (142 Ill. 9), where, a brakeman was killed by reason of the defective character of the rails and ties upon the track of a railroad not owned by the defendant, but over which it operated its cars by some kind of an arrangement with the-' owner of the track. ' It was claimed that the defendant was not liable because the defective tracks did not belong to it, but it was held otherwise, the court saying: “ Where the employee of a railroad company is directed to use the road of-another company in the business, of his employer, he has the right to treat such road as the road of the company employing him, and every railroad company whose employees use the road of another company under its direction, or for -its benefit, owes it as a duty to such employees to see that such road is not in a condition which will unnecessarily endanger their lives or limbs. The rule is thus stated in Wood’s Law of Master and Servant (2d Ed.) section 357, p. 735 : ‘ A railway *211company running its trains over the. track of another railway is liable to its servants for defects therein, when it would be liable if the injury resulted from defects on its own tracks.’ To the same effect are Stetler v. Railway Co. (46 Wis. 497, and cases there cited); Ill. Cent. R. R. Co. v. Kanouse (39 Ill: 272); Elmer v. Locke (135 Mass. 575); Snow v. Housatonic R. R. Co. (8 Allen, 441). We are, .therefore, of the opinion that the liability of the appellant cannot be defeated upon the ground that the road in use at the time of the accident did not belong to appellant.”
In Thompson on Negligence (2d ed. § 3730) the general rule is stated as follows: “If a railroad company acquires the permission to use the tracks of another company it becomes responsible to its own servants for injuries happening to them through defects therein in like manner as it would have been if it had been its own track.” (See, also, to the same effect, § 3735.)
I think the same principle has been held in this State in the case of McGuire v. Bell Telephone Company (167 N. Y. 208). There the defendant telephone company strung its wires on the poles of another company with the permission of the latter, and which poles were also equipped with wires which were used by the owner, the poles being jointly used by the two companies. - The defendant’s lineman climbed one of the poles for the purpose of adjusting wires' when the pole broke because of its decayed condition and he was injured. The argument was there made, as in this ease, that the defendant had no right to inspect the pole of another company. The court held as follows : “ It [the defendant] was bound both as to third parties and as to its own workmen to erect and maintain a reasonably safe structure and it had no right to use for that purpose an unsafe appliance, whether its own or that of a third party. By using the pole as part of its line it adopted it as its own,” and again, “ If the license received by the defendant from the Gas & Electric Company did not permit it to properly inspect the pole to ascertain its safety * * * then the fault lay with the defendant in using a pole the contract as to which with its owner precluded defendant from seeing that it was safe.”
There is no contention here that by its contract with the United Traction Company the Cohoes Bail way Company had required the former company to sand the tracks. If such were the case á ques*212tion would arise as to whether by such an agreement the Cohoes Railway Company had discharged its duty of reasonable care to its employees. That question was suggested and not answered in the case last cited, and it need not be answered here because it does not appear that such ivas the fact. It had been the custom of the traction company to sand the tracks, but the plaintiff of course did not know that such action was solely performed in the discharge of the duty which that company owed to ■ its own employees. He had a right to assume that his employer had by an agreement with that company made proper provision for his protection. In the language of the opinion in the case last cited : “It does not appear that he had any knowledge of the terms of the agreóment under which the defendant used the [track]. He is not chargeable with notice of the fact that under the agreement the defendant as is claimed by its counsel had no right to inspect the [track] or repair it, and the owner was under no obligation to do either. He cannot' be said to have assumed the risk of such a situation.”
It seems to me that this judgment against the -Cohoes Railway Company is well supported both on.principle and by authority, and that the judgment as to such defendant should be affirmed.
judgments and order reversed as per opinion, and new trial-granted, with costs to appellant to abide event.