#### Peter J. Bloss, Appellant, *v.*Oneida Railway Company, Respondent.

Third Department,

May 6, 1914.

Railroad — negligence — nuisance •— maintenance of electric third rail within limits of highway — electrocution of horse at crossing — evidence— presumption — consent to maintainance of third-rail system.

In an action to recover the value of one of plaintiffs horses which, while running away, slipped at a crossing and came in contact with an electric third rail and was electrocuted, it appeared that the defendant maintained such rail about eighteen inches above the ties and covered upon three sides, the under part being exposed, within the limits of the highway and narrowing it from four rods to twenty-six or twenty-seven feet. The third rail terminated on the sides of the road upon a cattle guard which projected into the highway. The current was carried under the traveled part of the highway by a cable.

*Held,*that it was error to exclude evidence offered by the plaintiff to show that at other crossings on the defendant’s road there was a greater distance between the third rails, and that a judgment dismissing the complaint should be reversed;

Although the use of the third rail for about five years was presumptive evidence under sections 171 and 180 of the Railroad Law, that the requisite consents of the local authorities, property owners and the Public Service Commission to the .construction, maintenance and operation of the road by electricity had been obtained, it did not raise a presumption that the defendant was authorized to bring the electric third rail into the highway in the manner stated.

If the defendant claims such a right it must show facts which fully establish it.

If the third rail projected into the highway unnecessarily it constituted a nuisance, rendering the defendant liable for any injury occasioned thereby.

Appeal by the plaintiff, Peter J. Bloss, from a judgment of the County Court of Madison county, entered in the office of the clerk of said county on the 16th day of June, 1913, upon a dismissal of the complaint by direction of the court at the close of plaintiff’s case.

*Campbell & Woolsey [Albert E. Campbell*of counsel], for the appellant.

*E. L. Hunt,*for the respondent.

*201Kellogg, J.:

The plaintiff’s team, ran away along the highway which is crossed, substantially at right angles, by the defendant’s tracks at Ohittenango station. One of the horses slipped at the crossing, came in contact with the electric third rail and was electrocuted, and the plaintiff has brought this action to recover, claiming that the third rail, charged with electricity, was illegally in the highway at the place where the injury was sustained.

The highway was a four-rod road. The defendant, as lessee, was using the tracks of the West Shore Railroad Company, and was maintaining the third rail to propel its cars by electricity. The third rail is near the other rails, and is fastened by uprights from the ties, about eighteen inches above them, and is covered by a board or fibre upon three sides, the under part being exposed. Under the traveled part of the road the electric current is carried by a cable from the end of the projecting rail, on either side of the traveled part of the road, leaving a distance between the rails of only twenty-six or twenty-seven feet. The rail terminated on either side of the road upon a cattle guard, which projected further out into the highway. This third rail had been used as a motive power for about five years. Under sections 111 and 180 of the Railroad Law that fact is presumptive evidence that the requisite consents of the local authorities, property owners and the Public Service Commission to the construction, maintenance and operation of the road by electricity had been obtained. It is not necessary, however, to presume that the defendant was authorized to bring its electric third rail into the highway, narrowing it from a four-rod road to one twenty-six or twenty-seven feet wide.

We need not determine whether, under the law as it exists, the defendant may be authorized to use the electric third rail in th.e public highway in the manner indicated in this case. It is sufficient that there is no evidence that any such authority was given. At common law the structure would be a nuisance, and while the defendant had permission to use electric power, it must do it in recognition of the rights of the public in the highway, except so far as the statutes necessarily indicate otherwise. Where the motive power is changed under section 180 of the Railroad Law the railroad corporation “may make *202any changes in the construction of its road or roadbed or other property rendered necessary by the change in its motive power.” The defendant had no right to bring its third rail into the highway unless it was necessary so to do in order to use the third-rail system and it was authorized to use electric power in that manner. Where the third rail ceases the current of electricity goes under the highway in a cable, and the car must proceed under its own momentum until it reaches the rail upon the other side. There is no evidence that a greater space than twenty-seven feet is not practicable. The evidence does not indicate that it was necessary that the third rail should project into the highway at all. The plaintiff offered to show the distance between these rails at other crossings on this line. The evidence was rejected and he excepted. If it had been shown that at other places a much greater space existed than at this point, it would have indicated that the rails unnecessarily projected into the highway. The exclusion of this evidence was error.

If the third rail projected into the highway unnecessarily it was a nuisance, and the defendant is liable for any injury occasioned thereby. *(Caruso*v. *Troy Gas Company,*153 App. Div. 431; 209 N. Y. 510.) The third rail terminated on the cattle guard, hut there is nothing in the record to show that the cattle guard was legally in the highway.

It was necessary for the defendant to show just what rights it had obtained to make this use of the highway which, *prima facie,*is illegal. The mere consent to operate its road by electricity or by the third rail does not establish the legality of this encroachment upon the highway. We are not determining that any law permits the local authorities or the Public Service Commission to permit a third rail, charged with deadly current, to encroach upon the highway within eighteen inches from the ground; we are holding that if the defendant claims such a right, it must show the facts fully establishing it.

The judgment should, therefore, he reversed and a new trial granted in the County Court, with costs to the appellant to abide the event.

All concurred.

Judgment reversed and new trial granted in the County Court, with costs to appellant to abide event.