1. It was right to submit the question of the plaintiff’s due care to the jury. While the plaintiff admitted that she did not notice the pile of rails over which she fell, it cannot be said that that fact alone required it to beneld as matter of law that she was negligent.
The presence of the rails was a temporary condition which she was not bound to anticipate. While there were many lights in the vicinity, the jury might have found that one of the two lanterns placed on the pile as a warning to travellers had been extinguished.' The plaintiff was following her daughter, *63who passed straight over the pile without accident. Whether her conduct was that of ordinarily prudent persons under like circumstances was for the jury. The facts in the present case are not the same as in Raymond v. Lowell, 6 Cush. 524, where the obstruction was a culvert grating, and the accident happened in broad daylight. Here the accident happened at nine o’clock in the evening, and the evidence was conflicting as to what the conditions as to light and darkness were at the point where the rails were piled.
2. There was evidence which would justify the jury in finding that the defendant was responsible for the presence of the obstruction of the highway. There was no dispute that the rails were placed where they were shortly before the time of the accident, for the purpose of being put into the defendant’s track, and that soon after they were so disposed of. The defendant’s road had long been, and was then, in operation. There was uncontradicted evidence that work was being done upon the railway, in taking out old rails and putting in new ones, by a firm of contractors for street railway work, one of whose workmen had placed the warning lamps on the pile of rails over which the plaintiff fell; but no evidence of any contract between that firm and the defendant was introduced, although the defendant did put in evidence in its own behalf.
The defendant’s principal argument in support of its contention that the evidence was not sufficient to warrant a verdict for the plaintiff is, that as the work of substituting new for old rails was being done by a firm of contractors, the jury must find that the firm was not acting as independent contractors for whose acts the defendant was not responsible, in order to hold the latter, and that the evidence would not justify such a finding.
But it is to be noticed that the railway which was under repair was in actual use for the transportation of passengers, and it is more natural that the control of the work of repairs which would unavoidably affect the safety of operation should be retained by the defendant than committed to independent contractors whom the defendant could not control.
Moreover, whether the relation of the firm to the defendant was that of an independent contractor or that of an employee, was a matter peculiarly within the knowledge of the defend*64ant, and when the defendant rested the case without introducing evidence upon the subject, some inference might be drawn from this conduct.
The fact that the rails were used to repair the defendant’s railway had some tendency to prove that they were its property and placed in the gutter for its convenience and by its servants. Even if each separate piece of the evidence was as consistent with the defendant’s non-ownership and lack of control, as with its responsibility, the state of the whole evidence at the close of that part of the trial, in view of the fact that the defendant introduced no evidence as to the true relation of the contractors to itself, justified the submission of the issue to the jury. Exceptions overruled.