I have tbe same hesitation in regard to this case which tbe trial judge seems to have bad at tbe trial. The action was for injuries t© plaintiff’s horse, occasioned by defendant’s negligence. Upon the trial it appeared that plaintiff’s horse, while passing along a street across which the Erie Railway Company’s tracks were laid, in charge of plaintiff’s servant, caught his foot in the space between the rails of the railroad and a plank which the company had placed alongside its rail for ease and convenience in crossing with teams. The result of the accident was to wrench off the horse’s hoof, and destroy the value of the horse. No neg*188ligence could be imputed to plaintiff's servant. He was passing along a public street, and had the right to asume the safety of the crossing. The only difference between the witnesses was that the plaintiff gave evidence tending to show the siiace between the plank and the rail was from 3-^ to 3| inches. Defendant’s evidence, on the contrary, was that it was only three inches. The accident undisputedly did happen, and the space between the plank and rail was greater than was needed for the free operation of the defendant’s cars thereon. The jury should have found negligence on these facts, it seems to me, as matter of law. (Worster v. Forty-second St. R. R. Co., 50 N. Y., 203.) The road was not restored to its usefulness by the defendant if it was left liable to such an accident; especially is this so when the cavity between the plank and the rail is greater than needed for the operation of a road crossing on grade.
The judgment should be affirmed, with costs.
Present — Barnard, P. J., and Gilbert, J.; Pratt, J., not sitting.Judgment and order denying new trial affirmed, with costs.