Simon v. Metropolitan Street Railway Co.

This action is brought to recover for an injury to the plaintiffs’ horse which, in November of 1898, while being driven along the public street, stepped into a hole about twenty inches long and several inches deep, contiguous to one of the rails-of a railway track belonging to the defendant, and which the defendant was bound to keep in repair, under section 98 of the Railroad Law. No question is raised as to the amount of damages. The defendant contends that it is not liable in the premsies, because section 98 of the Railroad Law, after making it the duty of a street surface railroad company to keep in permanent repair the street between, and two feet in width outside, of its tracks, adds “ under the supervision of the proper local authorities and whenever required by them to do so,” and that there is no evi*127dence in this case that notice was given to the defendant by any local authority of the condition of the pavement. But such notice, as has been authoritatively held, is not a condition precedent to the performance by the defendant of the duty assumed by' it of keeping the public thoroughfare in repair, neglect of. which renders it liable in civil action to any one of the public sustaining special damage from such neglect. City of Brooklyn v. Brooklyn City R. R. Co., 47 N. Y. 475. Of the bad condition of the street, which was testified to by several persons, the defendant was aware through its officer some months before the accident, for its track foreman testified that the street had been torn up in the month of August and that, coming along there and seeing it was in bad condition, he had sand and dirt furnished and the stones relaid temporarily.

Again, the defendant urges that it was not liable herein because the plaintiffs failed to show that the defendant was using the tracks upon the street at the time of the alleged injury, and that the contrary affirmatively appears in the case. That defense cannot be availed of here, because the defendant, after expressly admitting in its answer the allegation in the plaintiffs’ complaint that the defendant was the owner or lessee of, or maintained tracks upon and along the public street, proved by its own witness that it, the defendant, attended to the care of the street. There was no evidence of abandonment or nonuser of .the track in the case, excepting that a truckman incidentally said that “ since the car stopped running there, Bleecker street was neglected very much.” The judgment should be affirmed, with costs.

Freedman, P. J., concurs; Leventeitt, J., taking no part.

Judgment affirmed, with costs to respondents.