The plaintiff was improperly nonsuited. His counsel asked permission to go. to the jury upon the question whether the iron rail was not broken before the train on which the plaintiff was a passenger came upon it. The cause of the accident, and the injury to the plaintiff, was a broken rail, which threw the car in which the plaintiff was riding from the track, while the train was running at a speed of from twenty to twenty-five 'miles per hour, It appears, from the evidence, that the express train from the west had passed over the place where the rail was broken, only a short time previous, and that there had been no examination of the track between that time and the time of the *252accident in question. It was therefore clearly a question for the jury to determine, whether the broken rail was in a sound condition at the time the train in which the plaintiff was riding came upon it. It is claimed by the defendant’s counsel, that all the evidence shows that the rail was then in a safe condition, and that it broke under the train on which the plaintiff was riding. The most that can fairly be claimed is, that the evidence tended to establish this. . It does not prove it conclusively, and it should have been left to the jury to draw the inference. The rule is now established in this state, that a common carrier of persons is bound to provide road-worthy vehicles, irrespective of any question of negligence. (Alden v. The New York Central Railroad, Co., 26 N. Y. Rep. 102.) This is a simple, plain, and eminently sensible rule, and it should be applied in all cases’ falling clearly within the principle. The same principle would require the carrier who furnishes his own road, and has secured to him the exclusive possession and control of it, to provide a vehicle-worthy road. That is, a road adapted to the safe passage of the vehicle used over it—a road of continuous unbroken rails for each and every train to enter upon in its passage over the road. Strictly speaking, the rail is no part of the vehicle, though in some sense it may be said to be so. But however this may be, the rail is clearly a part of the machinery by which the vehicle is operated, and falls directly within the principle. The learned judge erred, therefore, at the circuit, in refusing to allow the plaintiff to go to the jury on the question whether the rail was not broken before the train on which he was riding came upon it There must consequently be a new trial, with costs to abide the event.
[Monroe General Term, March 5, 1866.Welles, X D. Smith and Johnson, Justices.]