#### Charles A. Place, Respondent, *v.*The Delaware, Lackawanna and Western Railroad Company, Appellant.

Third Department,

May 7, 1913.

¡Negligence — driver thrown from wagon by wheel striking railroad tie in highway — evidence — contributory negligence.

Action against a railroad company to recover for personal injuries. The plaintiff was thrown from a wagon by reason of the fact that a wheel struck a railroad tie, alleged to have been thrown in the highway by an employee of the defendant, which, prior to the accident, had unloaded a carload of ties nearly opposite the place of the accident. Evidence examined, and *held,*sufficient to justify the submission to the jury of the negligence of the defendant, and the contributory negligence of the plaintiff.

Appeal by the defendant, The Delaware, Lackawanna and Western Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Tompkins of the 13th day of December, 1811, upon the verdict of a jury for $1,000.

*Stanchfield, Lovell, Falck & Sayles [Halsey Sayles*of counsel], for the appellant.

*Willard M. Kent,*for the respondent.

Lyon, J.:

The judgment appealed from is based upon a verdict obtained by plaintiff for personal injuries sustained by him on the evening of June 2, 1910, as the result of being thrown from the wagon in which he was riding by reason of the wheel having struck a railroad tie.

The plaintiff was driving southerly over the highway which ran along the easterly side of defendant’s right of way, and was near Caroline Depot station in the county of Tompkins, when the collision took place. This tie lay in a northeasterly direction, diagonally crosswise of the westerly wheel track "of the highway and was about eight feet long, twelve to fourteen inches wide, six inches thick and projected from twelve to eighteen inches over the wheel track, with the southerly end somewhat elevated as it lay upon the bank, and as one witness *25testified, was lying at an angle and looked as though it had kind of slid off the embankment, and was near the switch stand and near an apple tree. The plaintiff offered proof that in the preceding month, another witness places the time in April, the defendant’s sectionmen, who were under one Tony Dominick as section boss, had unloaded ties from a box car by pitching them out of the car upon the ground opposite or nearly opposite the place where this tie lay in the highway. Defendant’s roadmaster, Wynne, however, denies that a carload of ties was shipped into Caroline Station over defendant’s railroad prior to July first of that year. The plaintiff called no witness who testified to having seen the tie slide into the highway. However, one witness testified to having seen the tie in the highway the latter part of May, another to having seen it there the day before the accident, and the plaintiff testified that while riding with defendant’s station agent Blinn about one week before the accident, which the latter denies, he saw the tie in the highway in the position in which it was when his wagon wheel struck it on the evening of June second. A witness testified that he thought the tie was one of those unloaded from the car, and another witness testified that it was a new tie of the same length and size as others along the track there. It appears that the railroad track upon which the cars stood when unloaded was twenty-three feet from the highway and at an elevation of about six feet above the highway, and that there was no fence between the railroad lands and the highway. The height of the floor of the car above the track was not shown. The ground next to the highway was somewhat sloping, with a shoulder and ditch, but to what extent the ground sloped does not definitely appear, but defendant’s section boss considered it sufficiently level to admit of piling ties thereon. One witness testified, regarding the manner of unloading the ties, that the men tipped them out of the car and that he could see the ties tumbling and rolling, and that he thinks there were as many as fifty unloaded from the car. Had that number been unloaded in the manner testified to it can be readily understood how the space between the railroad track and the highway might have become sufficiently filled to have allowed one of the ties last unloaded to slide over the pile into the highway. *26One end of this tie appears to have been split, inducing the suggestion upon the part of respondent that it was worthless for use as a tie and hence had been thrown into the highway as a discarded tie or for that reason not recovered by the section-men after having slid into the highway. There is no evidence of any tie being in the highway previous to the alleged time of unloading this car. Neither the section boss nor any of the sectionmen, who lived within a few rods of the place of the accident, were called by defendant to deny the unloading of the ties opposite the place of the accident at the time or in the manner stated, or to testify that all the ties were properly piled on defendant’s own land, or to in any way whatever combat the probability that the tie was one of those belonging to the defendant, which by reason of the manner of unloading had passed onto the highway, and the defendant offered no explanation whatever accounting for the presence of the tie in the highway, as indicated by the position in which the tie lay. In the absence of any such proof or explanation the jury had the right under the evidence to find that the tie deposited in the highway, which constituted a nuisance, belonged to the defendant and was so deposited through the negligence of the defendant at the time of unloading the ties.

As bearing upon the question of contributory negligence it appears that the plaintiff resided on a farm situated on the west side of the railroad a short distance north of the station. Upon the evening in question he had come from his home seated in an open wagon drawn by a single horse, which he said had no tricks, but was blind. He testified that he had gone along this highway, driving in the beaten track, about twenty or thirty rods to a point a short distance south of the railroad station, traveling at a sharp trot, having just slapped his horse with the lines, when his wagon collided with the tie; and that it was then between seven and eight o’clock in the evening, not hardly dark but twilight. He further says: *“1*could see where I was driving. It was light enough so I could see where I was driving. I could see the apple tree. I think I could see the ties and the railroad. I could see the road. I could see my horse, a gray horse. I probably could *27have seen the ditch alongside of the road if I looked for it; I don’t know whether I was looking for it. I was looking where I was going; I was going in the road and looking in the road.” The plaintiff had the right to assume that the highway was in a reasonably safe condition for public travel. The jury had the right to find that Station Agent Blinn, who had shortly before directed the witness Deimage where to pile the ties which he brought there, knew of the presence of the tie in the highway a week before the accident. Notwithstanding plaintiff testified to having seen it there at that time, the question of contributory negligence was fairly one for the jury under all evidence bearing upon that subject.

The charge was fair and was as favorable to the defendant as it had the right to ask. It was not excepted to by either party, and no requests to charge were made. I have examined the exceptions and think that none call for a reversal of the judgment. The defendant did not appeal from the order denying the motion for a new trial upon the minutes, and raises no question as to the verdict being against the weight of evidence, and the question here is whether there was such a failure of proof as required the granting of a nonsuit.

The judgment should be affirmed.

Judgment unanimously affirmed, with costs.