We are to assume that the defendants had a lawful right to lay their tracks in the street, where the injury occurred, but this right carries with it the obligation to lay the tracks in a proper manner and keep them in repair, and if an injury occurs by reason of neglect in either of these respects the defendants are liable in damages. (Fash v. Third Ave. R.R. Co., 1 Daly, 148; 11 Penn., 141.) The defect was immediately connected with the track, and was plainly visible to the employes of the defendants, who were constantly operating the road. The duty of remedying the defect was affirmative and absolute. Notice to the defendants of the defect was not necessary. (35 N.Y., 58.) It was their duty to know it. It was patent, and an omission to know that such a defect existed was prima facie negligence as much as an omission to repair after notice. The facts tended to prove that the defect had existed for some days. The learned judge who presided nonsuited the plaintiff because the defendants had no notice of the defects, and because they had not existed for such a length of time as to create the presumption of knowledge. The ruling was erroneous. The presumption of knowledge arises from the existence of the defects themselves. The plaintiff was only required to show that the injury resulted from the road being out of repair, and if circumstances existed showing absence of negligence it was for the defendant to prove them. The presumption of negligence was complete when it appeared that defects existed and an injury was caused thereby. In some cases notice to municipal corporations, express or implied, of defects or obstructions in the streets, is requisite to create a liability for damages for an injury produced by reason of them, but the authority of these cases has no application here. (Hutson v. Mayor, etc., 9 N.Y., 163; Griffin v. Mayor, id., 456.)
The judgment of reversal must be affirmed.
All concur.
Judgment affirmed. *Page 206