I believe that the trial court properly submitted to the jury the question of whether, at the point in question, the conditions maintained by defendant in the operation of its cars were such as to constitute a nuisance. The fact, that the use of these “ hobble cars ” has reduced the number of accidents in the city in general does not justify their operation on tracks laid so closely together that death is bound to *494ensue to any one caught between two such cars going in opposite directions. The varying distance between defendant’s tracks in different parts of the city is itself confusing to the public. There are localities where a person may stand in safety between the tracks and not be in danger when between passing cars of the type in question. There are other places where no provision has been made for relocating tracks so as to obviate the new danger caused by the use of the wider cars. With the cars formerly used, there was space for a pedestrian to stand in safety between the tracks, and the record shows that it was a matter of frequent occurrence for policemen on duty to so stand without either danger or injury from cars passing simultaneously on either side of them. That people using the streets of the city are in constant danger of being caught between moving cars, where the traffic is so steady and frequent, must be apparent. The defendant knew of the danger, for the instructors of its motormen warned them thereof in their training for their work and told them there was not sufficient space between tracks for a man to stand in safety nor to justify them in passing a man so standing. The way in which the body of the deceased, who was of ordinary size, was wedged between the two cars, shows what a deathtrap the defendant maintained at the locality in question. I do not think that the fact that the defendant was tacitly allowed to use the cars of the “ hobble ” type was a permit to use them under any and all conditions, or that it was intended to allow it to create traps at one section in order to diminish danger elsewhere. There is no contention that the tracks could not have been relocated at the dangerous points, so as to lessen the danger, or that there would not be sufficient space on either side of the tracks, thus relocated, to accommodate the vehicular traffic. It must be noted, as well, that the very shape of the cars diminishes the apparent, and increases the real, danger, for they are wedge-shaped and there is visible a seemingly safe distance between the points of approaching cars which is reduced by two feet when the centers are opposite each other. In Brown v. Metropolitan Street R. Co. (60 App. Div. 184; affd., 171 N. Y. 699) the defendant was held hable for the maintenance of a nuisance because at one part of its tracks the slot between the same *495was from one and one-half to two inches wide, instead of the .usual width elsewhere of from five-eighths to three-fourths of an inch. Plaintiff therein, a bicycle rider, who was injured by being thrown from his wheel because of the difference in width of the slot, was allowed to recover his damages. In Stern v. International Railway Co. (220 N. Y. 284) defendant was held hable for the maintenance of a nuisance because of the needlessly dangerous location of its trolley poles, which were in the center of the street, between double tracks, without protection. As the court said (p. 293): “ Plainly, there was at least some risk of accident; plainly, the risk was needless, whatever its degree; plainly, therefore, the inference of fault may be drawn unless the risk was so remote or trifling that reasonable men in the exercise of reasonable care would not have striven to avoid it. In the light of all the circumstances we think that question was for the jury.” In that case the court took into consideration changed conditions in traffic and methods, at the place in question, as well as elsewhere in the same city. As Judge Cardozo said (p. 296), quoting from People ex rel. City of New York v. New York Railways Co. (217 N. Y. 310): “The rights of a railroad corporation upon the parts of the streets appropriated to its use must be so exercised that the free use of the streets, for the purposes and in the modes inherent in their creation, will not be unreasonably interfered with.” Moreover, if defendant had the right to so operate its cars as to leave no space for pedestrians between tracks, decedent had no right to assume that he was in safety when standing between the tracks, and was guilty of contributory negligence as a matter of law in taking such a position. If defendant cannot be held for the maintenance of a nuisance under the conditions proven here, I do not see how the action for negligence can be maintained, because of decedent’s contributory negligence.
I favor the affirmance of the judgment appealed from, with costs.
Judgment and order reversed, new trial ordered, costs to appellant to abide event.