#### Bernard Kelly, App’lt, *v.*The N. Y. C. & H. R. R. R. Co. Resp’t.

*(Supreme Court, General Term, Third Department,*

*Filed February 24, 1890.)*

Negligence—Repairs to pathway of bridge.

Plaintiff was walking, on a very cold night, with his hands in his pockets, over a bridge built by defendant, with which he was familiar, when he tripped upon an obstruction in the walk. A hole had worn in the wooden pathway, and to repair it defendant had put down a plank three feet long and two inches thick; it edges were not bevelled. Stumbling upon its edge, plaintiff was injured. *Eeld,*that it was a question for the jury whether repairing the walk in this manner was negligence in defendant, as was also the question of plaintiff’s contributory negligence, if any.

Action to recover for injuries sustained by plaintiff, caused by the negligence of defendant in not keeping in proper repair a bridge at West Albany across its tracks, which it had erected and was bound to maintain.

Motion by plaintiff for a new trial on exceptions ordered heard in the first instance at general term.

Plaintiff was non-suited below.

*A. J.*Parker, Jr., for app’lt; *Hamilton*Harris, for resp’t

Learned, P. J.

The bridge on which the plaintiff met this, accident was built by the defendant. The defendant had been authorized to construct and maintain it And although not an insurer, the defendant was bound to reasonable diligence in keeping it in good order. In this case the defendant, to repair a hole in the wooden pathway of the bridge, had put down a plank some three feet long and one inch and a half or two inches thick. The edges of this plank were not bevelled. The plaintiff, in walking across the bridge, stubbed his toe against the edge of this plank, fell and was injured. Mow, we think that this presented a question for the jury whether the defendant was negligent in repairing the pathway in this manner. This is not a case in which, by the action of the elements, one plank has. risen above an adjoining plank. But here the company put the plank over the hole in such a way as to cause this impediment. It does not seem that the company might not have removed the plank in which the hole was,.and have put a new plank in its place. Certainly, if they put the plank over the hole they could have bevelled the edges. At any rate, we think that a question was presented which should have gone to the jury.

Mor can we say, as a matter of law, that plaintiff was negligent. *647It was a cold night. He had his hands in his pockets and was walking quickly. Of course, if his hands had been free he would have had a better chance of saving himself from a fall. But it can hardly be called negligence, in the *eye*of the law, to keeja one’s hands in one’s- pockets, especially when the weather is cold.

The plaintiff had crossed the bridge a dozen times in a year, and he had seen a dozen or more similar patches upon it. He •could not remember whether he had seen this patch or not. He had stumbled on the bridge before but had never been injured. He had crossed the bridge a few hours before, but in a horse car. He says he was walking along without looking to see where he was stepping., It was a starlight night, and about 12 o’clock, the 20th of January. There is a close fence between the pathway and the carriage road on the bridge, which would tend to darken the pathway. These circumstances do not enable us to say, as matter of law, that the plaintiff was negligent. The degree of care to be exercised in such circumstances is a matter to be submitted to the jury under proper instructions. The weather was severe, about ten degrees below zero. He naturally walked rapidly. Whether in the dim light the patch, as it is called, was visible, we do not know. And although the plaintiff had previously known that there were these patches on the bridge, still he had a right to use the pathway, and it was for the jury to say whether he was negligent. *Bullock*v. *Mayor, etc.,*99 U.Y., 654.

The motion for a new trial should be granted, costs to abide event.

Landon, J., concurs.