The plaintiff, while riding upon one of the defendant’s open cars, known as an “excursion-car,” was struck by another car, passing in the opposite direction, upon an adjacent track. At the time of this accident, which was in the middle of the afternoon of June 13, 1889, the plaintiff, with many others who crowded the car, was on his way to attend a base-ball game in the eastern part of the city of Rochester. He boarded the car opposite his store on Main street, near Cortland, where the same stopped for passengers. The seats of this car ran crosswise. As has already been stated, it was crowded at the time the plaintiff undertook to get on board. At each end of the car was a platform, and these platforms were also filled with standing passengers. A continuous step or rail ran the whole length of the car, on either side, half-way between the platform of the car and the ground. There were six posts on each side supporting the roof of the car. . The plaintiff was riding upon the north rail or step of the car, being .upon the side towards the other street-car track, with one foot upon the rail and the other upon the floor of the car, hanging by his hands *928to the upright bar or post about midway of the car. After passing East avenue, on Main street, and while opposite what is known as the “Sibley Block,” a one-horse ear of the defendant was met and was passed without accident, the plaintiff’s attention having been called to it, either voluntarily or through a notice from sume one else. Close behind the one-horse car was a larger car, drawn by two horses, to which the plaintiff’s attention had not been call, d, and which he did not see, and was unaware of its approach; nor did any of the other passengers similarly situated see the approach of this large car. The last-named car on' the north track came In contact with the plaintiff and others, and for the injuries there received by the plaintiff this action is brought.
Evidence was given in behalf of the plaintiff to the effect that at the place where this collision happened the two tracks of the defendant’s road were nearer to each other than at other places along the route, and also that by the sinking of the south vail of the north track the cars at the point named pitched towards each other, rendering the position of the persons riding upon the step more dangerous, than elsewhere upon the railroad. There is no evidence to show that the plaintiff, or any of the passengers standing upon that'rail, knew' the fact of tins specially dangerous condition of the tracks. We are bound to assume, upon this appeal, as it seems to us, that the verdict of the jury was, as it well might have been, placed solely upon this ground. We are not able to say from the evidence that had these tracks been placed at the same distance as elsewhere upon the route, and both had been in a safe condition, the plaintiff would have come in contact with the car running upon the north track. The defendant owed a duty to its passengers to keep its tracks in good order, and a failure to do so rendered it liable for the injuries to the plaintiff which were inflicted without fault on his part. This serious omission of duty in respect to the tracks of the railroad, pointed out above, and upon which our judgment may safely rest, takes tlie appeal out of the operation of the cases of Coleman v. Railroad Co., 114 N. Y. 609, 21 N. E. Rep. 1064, and Craighead v. Railroad Co., 123 N. Y. 391, 25 N. E. Rep. 387, greatly relied upon by the learned counsel for the appellant. It follows that the judgment and order appealed from should be affirmed. All concur.