(dissenting). The plaintiff has recovered a judgment on the verdict of a jury for injuries sustained by her while riding in an automobile driven by her father. They were riding easterly on Lenox .avenue in the city of Oneida when the automobile collided with a concrete pier. This pier is one of the piers located along the center of the avenue which support the stringers of defendant’s overhead railroad bridge crossing this avenue. The east-going traffic passes southerly of these piers; the west-going northerly of them. The southerly side of the pier with which the automobile collided is nearly four feet southerly from the northerly edge of the concrete as laid for east-bound traffic. The pier consists of a steel column encased in a rectangular concrete jacket about six feet high, the westerly face of which is two feet wide. .
*386When this overhead crossing was projected, the board of public works of the city of Oneida approved the defendant’s plans which provided for the overhead bridge to be constructed with two spans supported by “a row of center columns * * * and supporting * * * piers not to exceed two feet in width above the grade ' line of the street.” The construction conforms in all respects with the plans.
The crossing is in the outskirts of the city, where there are no street lights; neither the defendant nor the city placed a light on the bridge or the pier; but, with the intention of making the pier visible, the entire concrete surface was striped with alternate white and black hues, each four inches wide. In the plans approved there was no stipulation in respect to fighting the pier or the bridge, or requiring any warning signals or color markings.
The title to the street is held for the public use. A railroad cannot obstruct the street except on authority from the Legislature. The city has, by statute, ? * full control of the streets for the common use of all citizens, but the use of a street for a railroad crossing is not part of this common use. We may assume that the Legislature could delegate the necessary power to a city to do that which has been done here. But such a delegation of power will not be implied. “ Authority to regulate the use of the streets will not constitute it.” (People ex rel. City of New York v. N. Y. R. Co., 217 N. Y. 310, 316.)
Section 21 of the Railroad Law is the authority invoked. Under it the defendant could not construct its bridge across the street “ without the assent of .the corporation of such city; ” and, having so constructed the bridge, it must restore the street, “ thus intersected or touched, to its former state, or to such state as not to have unnecessarily impaired its usefulness * * † Such an
assent is a permission only. The assent here was to construct in accord with the approved plans. It left the railroad company liable for its negligence in maintaining the bridge or in failing to protect the public from unnecessary dangers when lawfully using the street. The defendant is not sheltered from damages from injuries sustained by an individual because of an obstruction in the street, unless that obstruction is specifically permitted by the Legislature or its duly delegated agent. (D., L. & W. R. R. Co. v. City of Buffalo, 158 N. Y. 266, 272.) The approval of the defendant’s plans by the board of public works is not the required *387specific permission from the Legislature. The corporation of the city had not authority to surrender any part of the street to the railroad company. (D., L. & W. R. R. Co. v. City of Buffalo, supra, 273.) The Legislature never delegated to the city council, directly or by implication, such authority. No statute has said where these piers should be placed or how they should be guarded; so, if they be considered a lawful structure, it is still required that they should be so placed and maintained as to avoid unreasonable and unnecessary danger to travelers ” on the street. (Stern v. International R. Co., 220 N. Y. 284, 291.)
After the construction was completed in this case, there remained a dangerous condition in that part of the street which was made exclusively for travel, namely, the concrete surface. The pier, standing substantially four feet out into this concrete surface, with no protection of lights, warning signals or guards, constituted a dangerous obstruction improperly guarded; one driving carefully along this surface within a reasonable distance from its edge would collide with this pier. The street was not restored “ to such state as not to have unnecessarily impaired its usefulness.” (Railroad Law, § 21.) The restoration required by this section is not complete when sufficient unobstructed space is left on the street surface to pass by, or around, the artificial obstruction; the usefulness of the whole improved surface must remain unimpaired so far as reasonably possible. By taking reasonable precautions in restoring the street, by maintaining with reasonable care, by furnishing the traveling public the protection of lights, warning signs or guards, the dangers would have been largely if not entirely removed. I do not think the stripes on the face of the pier were a sufficient substitute for such protection. “ Every railroad company which carries its tracks over or along a public highway is required to restore and maintain the highway and the approaches to the crossing in such a safe condition that a traveler exercising ordinary care may pass over the same in safety.” (McKinney v. N. Y. C. & H. R. R. R. Co., 66 App. Div. 207, 209; affd., 174 N. Y. 516; Gale v. N. Y. C. & H. R. R. R. Co., 76 id. 594; Allen v. Buffalo, R. & P. R. Co., 151 id. 434.)
I find no error in the charge or rulings which calls for interference by this court.
The judgment and order should be affirmed, with costs.
Hill, J., concurs.
Judgment and order reversed on the law and facts, and new trial granted, with costs to the appellant to abide the event.
See Charter of the City of Oneida (Laws of 1911, chap. 648, § 80, as amd. by Laws of 1916, chap. 63; formerly Laws of 1901, chap. 225, § 72.)— [Rep.
See Railroad Law of 1890, § 11; now Railroad Law of 1910, § 21, as amd. by Laws of 1927, chap. 47; since amd. by Laws of 1928, chap. 546.— [Rep.