Fash v. Third Avenue Railroad ( 1861 )

By the Court.

Brady, J.

The cause of the injuries sustained by the plaintiff in this action was the projection of iron spikes from component parts of the bed or support of the rails laid down by the defendants. It was wholly immaterial whether the projection was caused by the failure of the Corporation of the City of New York to repair the street in the locality of the accident. In the language of the Judge who presided at the trial, the defendants " having undertaken to lay down a rail track along the avenue, which was a public road, they were bound to lay it down properly, and to see that it was kept in a proper-condition thereafter; and it was for the jury to determine whether they had done so or not.”

It is very clear on the evidence, that if the defendants liad not permitted the spikes to project as stated, the accident would not have occurred. It was, therefore, the result of their negligence. For these reasons the second request of the defendants to charge was properly denied.

The fir.-t request was properly refused, because the plaintiff had a right to travel on that part of the avenue which he selected, and was not there, therefore, unnecessarily or unlawfully.

The third request was also properly denied. Thé complaint does not appear to have been given in evidence, and the plaintiff was not asked any questions in relation to its contents. The defendants had no right to ask a direction on the assumption of proof which was not given in the case.

The judgment should be affirmed.