(dissenting). In this case I am unable to- agree with the majority of the court. I should be willing to affirm upon the opinion of Mr. Justice Collins in the Supreme Court, reported in 38 Vroom 76.
The conclusion reached by the Supreme Court in that opinion is, in my judgment, based upon a proper application of the police powrer and also upon a wise public policy.
I agree with Mr. Justice Pitney in his opinion in this case wherein he declares that “the plaintiff, at the time of her injury, was not in the-exercise of her rights as a passenger in the act of leaving the defendant’s car,” and that, if she can recover, it is only upon the theory that the defendant, by a failure to repair the hole in the highway lying between *365its tracks, had failed to perform some duty which it owed to the plaintiff as one of the^ public.
It is misleading, in my view, to refer to this case as ono in which the failure of the defendant is a failure to repair the surface of the street. The hole in the highway was at a street crossing and abutting upon the rail of the track or its foundation, and the failure to repair at this point was a failure to repair its tracks, within the well-recognized principles of law applicable to the duty to repair tracks laid upon a railway company having a right to lay tracks in the public streets. The majority opinion in this case concedes that “it is familiar law that a railway company, having the right to lay tracks in a public street, is bound by the general principles of the common law, and, without either a specific statute or ordinance, or a contractual obligation, to lay its tracks in a proper manner, and to keep them in -a proper state of repair.” This principle thus stated is clearly sustained by 2 Thomp. Negl. (2d ed.), § 358, cited in that opinion.
I am at a loss to perceive how the duty to repair the hole between the tracks was not one of the duties to repair the track, which was incumbent upon the defendant companj', under its implied obligation to so construct and maintain the rails of its track as that they should be free from danger to persons1 lawfully using the highway. I regard the tracks as contemplating all between the rails as laid in the public highway.
The defendant’s counsel, at the hearing and in his brief, admitted that if the defendant company did not have actual knowledge of the condition of its tracks at the point in question, it was chargeable with such knowledge, because of the length of time the track had been in the condition it was at the time the plaintiff was injured, and applying the principle of law, stated in the majority opinion, to the facts in this ease, that “if the defendant was under- an absolute- duty to repair the pavement, it was, at the same time, under a duty to observe its condition,” it seems impossible to- escape the conclusion arrived at by- the Supreme Court.
*366It is held by the Supreme Court, and not controverted by the majority opinion in this court, that the ordinance of the city of Newark, in evidence in this case, and upon which tire plaintiff, in part, relied, requires the repairing by the defendant company between its tracks, and that the charter of the city of Newark, passed in 1836 and cited in the opinion of the Supreme- Court, under the authority of which said ordinance was adopted, was in force at the time the defendant company took over the street railway which had its tracks upon Mulberry street, in the city of Newark, and also at the time of the incorporation of the defendant company. Where- a street railway company takes a franchise from a municipality to- operate a street railway within the limits of such municipality, it-takes it subject to- the power of such municipality to regulate-, under such franchise, its use of the streets and its duty to pave and repair between the tracks as, expressly or impliedly, authorized by the municipal charter.
I -am also clear, in my view, that such a provision of a city charter o-r of an ordinance passed under it, is not for the benefit of the city, per se, but is for the protection of the traveling public. Especially must this be true with regard to a provision with relation to the paving and repairing of that portion of the highway lying between the rails constituting the tracks of the company. The- city does not pave for its own purposes, per se. Paving is for the the use of the public. Both those of the public who pass over it with horses and carriages and those who pass on foot. A corporate entity does not travel and does not need paved streets.
In Sonn. v. Erie Railroad Co., 37 Vroom 428, this court held • that a provision of the charter of the Erie Railway Company which required it to keep its crossings at public highways secure for travel, laid upon it a duty to the public, and for default in so- doing it was liable in damages to a person injured because of its neglect of this duty. The principle of that case obtains where any duty is imposed by statute, or an ordinance lawfully passed under statutory authority, and it matters not whether the- duty is in a special charter, a general act or a lawful ordinance.
*367In the majority opinion there is a discussion of the question as to whether the ordinance of the city of Newark, which attempts to impose a duty upon the defendant company to pave its tracks, is not void because such an imposition is in effect taxation. I shall not discuss that question farther than to express dissent from that view, for the reason that that question is not, in my judgment, in this case for decision.
I am authorized to say that Justice Hendrickson and Judge Bogert concur in the views here expressed.
I vote to affirm.
Yredenburgh, J.I concur in the dissenting opinion of Mr. Justice Fort in this case as a whole, but desire to especially emphasize my adherence to the doctrine therein contained wherein it is said that “a city charter or an ordinance passed under it is not for the benefit of the city, per $e, but is for the protection of the traveling public. Especially must this be true' with regard to a provision with relation to the paving and repaving of that portion of the highway lying between the rails constituting the tracks of the company. The city does not pave for its own purposes, per se. Paving is for'the use of the public.”
For these reasons I also vote to affirm.
For affirmance—Fort, Hendrickson, Bogert, Vredenburgh. 4. For reversal—The Chancellor, Ci-iiee Justice, Yan Syckel, Pitney, Adams, Yroom. 6.