The action was brought to recover damages of the defendant, the Rochester Railway Company, for causing the death of the plaintiffs' intestate through negligence. The defendant operated a street railway in the city of Rochester and the accident happened upon its Lake avenue line. The tracks were located between the curb of the street and the sidewalk, and, for the whole distance, were, more or less, close *Page 121 to the trees, which were grown upon the sides of the avenue. By a traffic arrangement between the defendant and the Rochester Electric Railway Company, the latter, which operated an electric trolley road from Ontario Beach to the city line, ran its cars over the former's tracks to points within the city limits. There was no lease of either road and each company operated, and managed, its own trains of cars. At the time of the accident, the deceased was riding upon one of the cars of the Rochester Electric Railway Company, as the proofs conclusively show, and at a point upon the defendant's Lake avenue line, while standing upon the platform and projecting his person beyond the side of the car, he was struck upon the head by a tree, growing in close proximity to the track and received the injuries, which were alleged to have, subsequently, caused his death. The tree stood within one foot and seven inches of the rail. Notwithstanding that the contract of the deceased for his carriage was with the Rochester Electric Railway Company, it is sought to make the defendant liable for the results of the accident and the negligence relied upon to create the liability consists in the construction of its railway in such close proximity to a tree. It sustained no contractual relations to the deceased and none such could be predicated upon a mere traffic arrangement between the two companies, which permitted the carrier of the deceased, for a compensation, to run its cars over the defendant's tracks. The defendant had the right to construct its tracks as, and where, it did and what duty of care and precaution it was under, for the safe operation of its cars, it owed to its passengers. How it performed its duty we are not informed and it is immaterial here. We know that cars could pass the tree. If there was any negligence, from which the plaintiff's intestate suffered, it could only have been in the manner in which the Rochester Electric Railway Company operated its cars upon such a track. If the construction of its cars was defective; or if their operation and management were such as not to furnish adequate security for passengers, then that company would be at fault. We do not think that the defendant is chargeable, *Page 122 upon the proofs, with the neglect of any duty owing to the plaintiffs' intestate and, for that reason, the dismissal of the complaint was proper.
The judgment appealed from should be affirmed, with costs.