FOURTH DEPARTMENT, JULY TERM, 1896.

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The judgment and order should be reversed and a new trial granted, with costs to abide the event.

All concurred, except WARD, J., not sitting.

Judgment and order reversed and a new trial ordered, with costs to abide the event.

MARY LYNCH, an Infant, by her Guardian ad Litem, JOHN LYNCH, Appellant, . THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Respondent, Impleaded with EARL BUTTERY, Defendant.

Negligence-a — a gravity road constructed at right angles to and upon the land of a railroad company, to ship stone - the railroad is liable as licensor for a stone car precipitated upon a passenger car-duty of the railroad to keep its tracks unobstructed notice to its foreman and sectionmen is notice to it.

In an action brought to recover damages resulting from the alleged negligence of the defendant, on whose railroad the plaintiff while a passenger was injured by a carload of stone being thrown through the side of the car in which she was riding, it appeared that one Buttery, the owner of a stone quarry upon a side hill above the railroad, had constructed a precipitous gravity road at right angles with the defendant's road in order to facilitate the shipment of stone upon the defendant's cars, and that, by reason of the negligence of an employee of Buttery, control was lost of a carload of stone while upon Buttery's road and it was thrown through the side of the passenger car. The railroad corporation consented to the building of the gravity road, thirty feet of which were upon its land, and the foreman and sectionmen of the railroad corporation knew that upon two occasions, within a year of the accident in question, loaded cars on the gravity road had escaped control and been precipitated upon the tracks of the railroad corporation.

Held, that Buttery was a licensee of the railroad corporation, which consequently became liable for his negligence and that of his employees; That the railroad corporation was bound to exercise the greatest vigilance to keep its tracks clear from obstructions animate and inanimate, and that it was liable to the passenger who was injured by its failure to perform this duty;

That notice to the foreman and sectionmen of the railroad corporation, while in the discharge of their duties, was notice to the railroad corporation of the previous escape of cars;

That the jury might have found, from the manner in which the gravity road was constructed and operated, that the railroad corporation was negligent in uniting in its construction and in permitting it to be operated as it was.

App. Div.]

FOURTH DEPARTMENT, JULY TERM, 1896.

APPEAL by the plaintiff, Mary Lynch, an infant, by her guardian ad litem, John Lynch, from a judgment of the Supreme Court in favor of the defendant, the New York Central and Hudson River Railroad Company, entered in the office of the clerk of the county of Niagara on the 15th day of April, 1896, upon an order granted at a Trial Term of the Supreme Court, held in and for the county of Niagara, dismissing the plaintiff's complaint as to the defendant, the New York Central and Hudson River Railroad Company.

This action was begun October 17, 1894, to recover damages for personal injuries caused, it is alleged, by the negligence of the defendant. The respondent owns and operates a steam railroad along the east bank of Niagara river, between Lewiston and Suspension Bridge. June 27, 1894, the plaintiff held a ticket entitling her to ride on the respondent's road from Suspension Bridge to Lewiston and return. She made the trip from Suspension Bridge to Lewiston in safety, and later in the day took passage on one of defendant's trains to return to Suspension Bridge. While on her return, a car loaded with stone was precipitated through the side of the passenger car in which she was riding, by means of which her skull was fractured and other serious injuries inflicted.

At the time of the accident, Earl Buttery was, and for about two years had been, the owner of and engaged in working a stone quarry on the east side of and abutting on the respondent's railroad. This quarry is located on the side of a hill about eighty feet above the main tracks of the respondent's railroad. To facilitate the shipment of stone by the respondent's cars, it constructed a side track about twenty-five feet east of its east main track, on which side track the cars on which the stone was loaded were placed. Immediately east of the east rail of this side track, and on the respondent's land, a platform was constructed nine feet wide, and higher than the side track. From this platform Earl Buttery constructed a double-track gravity road to his quarry, which is 188 feet in length, 158 feet of it being on his own land and 30 feet of it on the land of the railroad. This gravity road intersects the railroad at right angles. Its gauge is about three feet, and the two independent tracks are about two feet and two inches from each other. The highest point of the gravity road is in the quarry, and 73 feet higher than the platform. From this point, descending to the west towards the

FOURTH DEPARTMENT, JULY TERM, 1896.

[Vol. 8. platform, there is a grade or fall of 10 feet in the first 75 feet; the grade then changes, and from the point where it changes to the platform the distance is 113 feet. This point at which the grade changes is 63 feet above the platform, so that there is a fall of grade of 63 feet in 113 feet. This gravity road was operated by two cars, each being about eight feet long and four and one-half feet wide, mounted on four wheels. The cars were so connected that when one loaded with stone was let down to the platform an empty car was drawn back from the platform to the quarry, was there loaded, and let down to the platform. These cars were lowered and raised by a wire cable attached to a drum in a building at the quarry, called the drum house. A brake was applied to the drum, around which the cable wound by means of a lever operated by a man stationed at the drum house. By the application of the brake the velocity of the descending car loaded with stone was sought to be, and generally was, controlled. But on two occasions, and within a year before this accident, a loaded car escaped and was precipitated on to, and on one occasion over, the main tracks of the respondent's road. The sectionmen employed by the respondent knew of these accidents, helped clear the main tracks of the stone which fell from the car, and the respondent's foreman on this section of the railroad knew of both accidents.

On the occasion in question a car was loaded with stone at the quarry and pushed by the employees of Buttery along the level portion of the track lying in the quarry until the car reached a point on this road where it would run by the force of gravity down to the platform on the respondent's railroad. The men who pushed the car into place supposed that the employee whose duty it was to operate the drum and brake was at his station, and they shouted to him that the car was ready to go down and that a train was approaching on the railroad; but for some reason the brake was not applied, or, if applied, failed to control the movement of the loaded car. The evidence tends to show that the man whose duty it was to operate the brake was not at his station in the drum house, and that the velocity of the descending car was in nowise controlled. At the moment when this descending car reached the respondent's track, the train on which the plaintiff was riding passed, and the stone car dashed over the platform and through the side of the passenger car, injur

App. Div.]

FOURTH DEPARTMENT, JULY TERM, 1896.

ing the plaintiff, as hereinbefore stated. There was some evidence that the drum and the appliances for controlling the movement of the stone car were crude and not well constructed.

On the trial a nonsuit was granted in favor of the railroad comand a verdict was recovered against Earl Buttery for $2,750.

pany,

P. F. King, for the appellant.

Charles A. Pooley, for the respondent.

FOLLETT, J.:

It is not asserted by the respondent that the plaintiff contributed in any way to the accident, nor is it asserted by her that the employees on the respondent's passenger train were negligent in its management.

The evidence in this case presented two questions of fact which ought to have been submitted to the jury; and in case either had been found in favor of the plaintiff she would have been entitled to

recover:

(1) Did the negligence of Earl Buttery, the quarryman, or of his employees, cause the accident?

(2) Was the respondent negligent in permitting the gravity road to be constructed and operated partly on its own land in the manner described by the evidence?

It was conceded on the trial that the respondent built the side track and built, or permitted the quarryman to build, the platform which was wholly on the respondent's land, and permitted the quarryman to build the gravity road, partly on its land and partly on his land, for the benefit of both. The gravity road being built and operated partly on the land of the respondent by the quarryman, he was a licensee of the respondent which became liable for the negligence of the quarryman and of his employees. (Railroad Co. v. Barron, 5 Wall. 90; McElroy v. Nashua & Lowell R. R. Co., 4 Cush. 400; Shearm. & Redf. Neg. [4th ed.] § 413; Buswell Per. Inj. § 48; Thomp. Corp. § 6293. The respondent knew how the gravity road was constructed and operated, and the fact that the negligent act which caused the injury was performed on the land of the quarryman does not relieve the respondent from liability, as the situation was such that a negligent act on the part of the quarryman or of his employees would necessarily endanger the passen

FOURTH DEPARTMENT, JULY TERM, 1896.

[Vol. 8. gers on the road of the respondent. The gravity road was in plain sight of the respondent's officers and employees, and it was bound to take notice of the dangers incident to its operation.

A railroad is bound to exercise the greatest vigilance and care to keep its tracks clear from obstructions, animate or inanimate, and if it fails in its duty and a passenger is injured by reason of its failure, it is liable for the injuries sustained. (Donnegan v. Erhardt, 119 N. Y. 468.) The fact that external causes over which the corporation has no control sets in motion an object which is cast upon its tracks or into its cars, causing an injury to a passenger, does not exempt the railroad from liability, provided the accident might have been prevented by the exercise of foresight and due care. In case rocks on land not belonging to the corporation are set in motion by the action of the elements and are cast on the track, causing an injury to a passenger, the railroad is liable, provided the accident ought to have been apprehended and might have been prevented by the exercise of due care. When a passenger is injured, the question always is, was the accident one which should have been apprehended by the carrier? It seems to me that the accident which caused the injury to the plaintiff should have been appre hended by the managers of this corporation. These loaded cars of stone were let down this precipitous incline at right angles with the respondent's road without anything to control or arrest their movement except the wire cable. There was no barrier between the platform and the respondent's main tracks. On two previous occasions a similar accident had occurred, though at a time when no train was passing, and no damage was done. A trackman who had been employed by the respondent testified that, on two occasions after the cars had dashed down upon the respondent's road, he cleared the stones from the tracks. He further testified: "After I cleared the stones off the track I told the foreman of the Central track, John Carr, about it." Carr testified: "I do not know of any time when those stone cars were down on the track before that day" (referring to the day when the plaintiff was injured). But he fails to deny that he was informed by the sectionman that cars had escaped and scattered stones on the respondent's tracks. An employee of the quarryman testified that two years before the accident in question a similar accident occurred.