I think the instructions given by the trial judge were correct and fairly left it to the jury to pronounce, upon the evidence, what they believed to have been the obstruction *449to plaintiffs passage over the track. Their verdict must be taken as establishing, conclusively for us, that the plaintiff stumbled over the rail, and not because of the hole in the flagging. The question, therefore, becomes one which relates to the rights of the defendant, and to the duty resting upon it, with respect to the laying and maintenance of its rails upon the street surface. The evidence for the plaintiff and for the defendant conflicts as to the height of the rail above the surface of the street. It was either one inch and an eighth of an inch, or upwards of two inches. There was evidence for the defendant that the track, when laid some ten years previously, was level with the street; but the rails certainly were, at the time of this occurrence, at some height above the street surface, and, to some extent, constituted an obstruction in the highway.
The defendant was authorized and had the right to put down its rails in and upon the street, and was under no liability, by reason of anything in the grant from the common council, to keep the street pavement between its tracks in repair. But it was under an obligation, which is necessarily implied as to every use of a highway, so to construct and to maintain its tracks as that, by the exercise of a reasonable care and supervision with respect to them, no danger might be occasioned to the public in its use of the highway.
From the case of Rex v. Kerrison (3 M. & S. 526), upon which the decision in Oliver v. North Eastern Railway Co. (L. R. [9 Q. B.] 409) was rested, the principle may be deemed to have been established that a railroad corporation having its rails in a public highway must lay and keep them so as to cause as little injury as possible. The highway, or street, used for the rails must be maintained, as nearly as possible, as fit for the use of the public, who travel on foot or in vehicles, as it was before, having due regard to the necessity for the rails being there. Whether the rails are so laid as to constitute on its part a neglect of proper conditions for the public safety is a question of fact for the jury, and not one of law for the court to pass upon. It was the province of the jury to decide, in *450such a case, whether the defendant was negligent. It is not a question of the right of the defendant to be there with its rails in the street; there was only the question whether, in the way, or in the condition in which it suffered its rails to remain, it was not neglectful of the right of the public to as safe and unobstructed a use of the street as was reasonably possible under the circumstances.
That the evidence showed that no complaint had ever been made, lodged, or recorded, to the knowledge of the defendant, or with the public authorities, does not affect the question of liability. It was something for the. jury to consider in ren-, dering a verdict. It may or may not have seemed singular. Many may have fallen from the same cause without injury ensuing; or, if injured, without complaining or suing.
This discussion sufficiently covers the points presented for the appellant, and, there being no errors calling for a reversal, the judgment should be affirmed, with costs.
All concur.
Judgment affirmed.