In a. d. 1853, the city council of the city of Steubenville, by ordinance, authorized a railroad company to lay one main track and one side track in a street, the tracks to be parallel with the west line of the street, and the center of the western track to be forty feet from said west line of the street. The city reserved the right to require the company to cover any portion of the superstructure, except the rail, with suitable plank in such manner as the council should prescribe, and also to require the company to light said railroad with gas in such manner as the council should prescribe. The company made and left open a ditch between its tracks. This being unlighted at night, M., without fault on his part, fell into the ditch and suffered serious injury. He sued the city. The answer pleaded the said ordinance as relieving the city from responsibility for so much of the street as was occupied by, and lay between, the tracks, averring “ that the place where the *236plaintiff fell had not been used, maintained or kept up as a street or highway since the said railroad tracks were constructed, and was in the exclusive possession and use of said railroad-company. That the space between said main track of said railroad and the west line of said Water street has been kept open and in proper repair as a street, and furnished ample facilities for the passage of any and all persons who had, or might have, occasion to use it as a street.” The trial court sustained a demurrer to this answer, and the plaintiff recovered a verdict and judgment.

Held: The city’s supervision of, and responsibility for, the street, subject only to the use by the company as granted, continued; and the answer was insufficient.

Judgment affirmed.