#### Millie L. Hayman, Respondent, *v.*The City of New York and Long Island Railroad Company, Appellants, Impleaded with The Brooklyn Heights Railroad Company, Defendant.

Second Department,

June 5, 1914.

Municipal corporations—railroad — liability for injury to passenger in automobile driven into depression in street—failure of railroad company to replace pavement after completion of work—charge.

Where a railroad company, pursuant to chapter 507 of the Laws of 1903, and under a permit from the city authorities prescribed therein, changed a grade crossing and, incidental to the work, cut an opening in the pavement, and having finished the work in December and filled up the opening in the street did not replace the pavement, it and the city are both liable for personal injuries sustained by a passenger in a motor ear which was driven into the depression in the following June, where it appears that for several weeks a depression from six to eight feet wide and from eight to fifteen inches deep had existed with the knowledge of the city authorities.

The railroad company was under obligation when it finished its work to leave the street so far as possible in as safe a condition as it found it. It was not enough to leave it in a safe condition for the time being, and it should have foreseen and provided for the effects of the ordinary use by the public and of rain or snow and the changes of weather.

The defendant was not entitled to the instruction “that no responsibility for the condition of the street rested on the Long Island Railroad if, when the street passed back to the exclusive control of the city, it was reasonably safe.”

Appeal by the defendants, The Oity of Few York and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 11th day of December, 1913, upon the verdict of a jury for $15,000, and also from an order, entered in said clerk’s office on the same day, denying appellants’ separate motions for a new trial made upon the minutes.

*William C. Beecher [Joseph F. Keany*with him on the brief], for the appellants.

*Stephen C. Baldwin [Joseph J. Cunningham*with him on the brief], for the respondent.

*196JENKS, P. J.:

This action was begun, tried and submitted upon the theory of negligence. The plaintiff has recovered a verdict against both defendants for her personal injuries suffered when the motor car in which she was a passenger was driven into a depression in a city street. Both defendants appeal in separate records. The defendant railroad corporation rested its case upon the plaintiff’s proof, content to make motions for her dismissal and for a direction of a verdict. The defendant municipal corporation offered proof and made similar motions. I shall consider the appeal of each defendant in the order of their naming.

Pursuant to chapter 507 of the Laws of 1903, and under a permit from the city authorities prescribed therein, the defendant railroad corporation changed a grade crossing, and incidental to that work cut an opening in the macadam pavement of the said street in order to put down certain temporary tracks. It finished the work about December 8, 1908, took up the tracks and filled up the opening, but did not replace the pavement. The casualty occurred on June 24, 1909.

I think that the obligation upon the defendant when it finished its work in this street was to leave the street, so far as human observation could go, in as safe a condition as the defendant found it. It was not enough to leave it in a safe condition for the time being, but the defendant should have foreseen and should have provided for the effects of the resumed and ordinary use of the street by the public, and of rain or snow and of the changes of weather. *(Johnson*v. *Friel,*50 N. Y. 679; *Allen*v. *Buffalo, Rochester & P. R. Co.,*151 id. 434.) If it fell short of due care in its discharge of this obligation, then it could be charged with culpable negligence as to this plaintiff.

The permit under which the defendant worked expressly required that ‘c The openings in the pavement shall be refilled with clean earth, well rammed down as put in, and the pavement immediately replaced and kept in good order at the expense of the company making the opening. In case of emergency or stormy weather, or other unforeseen difficulties, preventing the immediate restoration of the pavement, the same must be done as soon as the obstacle is removed.” It is undis*197puted that on the day of the casualty the macadam pavement had not been restored. There was testimony that on June 24, 1909, there was a depression across the street 6 or 8 feet wide and from 8 to 12 to 15 inches deep at its center, and that this condition had existed for at least two months. And there was testimony that the soil or loam originally put into this opening when the defendant left the street had been partly carried out by the wheels of vehicles and had been eroded by rains and by changes of the weather. But there was also testimony elicited on the cross-examination of a single witness that this opening had been filled in so that the street surface was practically smooth and remained apparently level at least as late as April 9, 1909. There was also testimony that indicated that one using the street as did the driver of this motor car would not, in consequence of a down and up grade at this point, see this depression in time to avoid it; that this car was not driven at an immoderate speed and that its driver was unfamiliar with the street. I think that the case presented a question for the jury and that the evidence justified a finding of liability on this defendant in that it did not exercise due care in the work of restoration of the street.

The defendant insists that its exception to the disposition of its request for an instruction, submitted after the main charge, is well taken. That request was “that no responsibility for the condition of the street rested on the Long Island Railroad if, when the street passed back to the exclusive control of the city, it was reasonably safe.” The court replied: “I think I will leave that as a question of fact for the jury.” The counsel for the plaintiff commented: “I call your Honor’s attention to the word ‘exclusive.’ It did not pass back to the exclusive control of the city so long as any duty of repair remained in the Long Island Railroad.” Thereupon the court, at the request of the defendant, defined in effect the expression “ entire and exclusive control ” as the time when this defendant “removed its tracks and the space was filled in.” The court did not attempt a legal interpretation of these words “exclusive control,” but intended to refer to the period when the defendant ceased occupation of the street in the doing of *198this work. Eesuming discussion, of the instruction, I comment that apparently the ear of the court was caught by the final words “ reasonably safe ” and the court was thus misled in dealing with a proposition of law. But I shall consider the disposition as tantamount to a refusal of the request. I think that the defendant was not entitled to the instruction. Without violence to the words “reasonably safe,” the jury might have considered that at the time the defendant quit the work the condition of the street might be described as “reasonably safe,” *i.*e., that the opening, as testified to by the witness Swezey, had been filled in so that the surface of the street was practically smooth and remained for some time apparently level. But assume that the jury was of opinion also that the defendant in the exercise of due care should have foreseen that the character of the filling or the omission of repavement would result in this depression, would the jury in the face of such an instruction have been free to cast liability on this defendant ?

I think that the defendant was not excused necessarily from repavement because a witness testified without, contradiction that in order to make a good job of macadamizing “ you have to leave it for good weather,” for such an expression in its full value is not enough to excuse an omission from December 8 to the following June 24, or even from April 9 to that date. I think that the jury was not confused by the subsequent instructions, which may be collated thus: When the defendant had removed the tracks and filled in the space, it lost the right of use and occupation, and the entire and exclusive control of the highway passed to the city, and it was a question for the jury whether the opening was filled in properly so as to be reasonably safe, but unless some duty remained in the defendant, it could not be held liable for a condition which was the result of six months’ wear and tear and the eroding effects of rain. The question now up is not whether the instructions were absolutely correct, but whether they were prejudicial to the defendant.

This other defendant, unlike the railroad company, did not rest upon the plaintiff’s case, but offered certain testimony which was directed to the.physical character of the depression. But this *199testimony was that of estimation. And at the close of the case there was no proof that established as matter of law that the depression was negligible so far as the city was concerned.

The jury could have found upon the facts that the city did not fulfill its obligation to see to it that when the railroad company finished its work it left the street in as safe a condition as it found it. Admittedly the railroad company did not up to the time of the accident, months after it had quit the work, attempt to comply with the requirements of the permit issued by the city authorities. (See *Hunt*v. *Mayor, etc.,*109 N. Y. 134, 142; *Schumacher*v. *City of New York,*166 id. 103, 109; *Godfrey*v. *City of New York,*104 App. Div. 357; *Parks*v. *City of New York,*111 id. 836; affd., 187 N. Y. 555; *Tabor*v. *City of Buffalo,*136 App. Div. 261; *Lobravico*v. *City of New York,*155 id. 184, 188.) The jury could have found that the city had permitted this depression, which rendered the street unsafe, to-exist without warning or signal of any dangerat this point. *(Pettengill*v. *City of Yonkers,*116 N. Y. 558.) The period as testified to by the plaintiff’s witnesses has been discussed. The police inspector who had charge of the territory, called by this defendant, admits that this condition had continued for days and weeks before the casualty.

The judgment and order should he affirmed, with costs.

Present—Jerks, P. J., Burr, Thomas, Carr and Rich, JJ.

On each appeal judgment and order unanimously affirmed, with costs.