Newtown R. R., 76 N. Y. 28; Lockwood v. North Missouri R. R., 34 Mo. 259.) It was error to admit the testimony as to the elevation of the switch being greater at the time of the trial than it was when the plaintiff was injured. (Dale v. Delaware & W. R. R., 73 N. Y. 468; Payne v. Troy & Boston R. R., 9 Hun, 526; Salters v. Delaware & H. R. R., 3 id. 338; Dougan v. Champlain T. Co., 51 N. Y. 1.) The testimony of the witness, Robert Squires, as to the statement he made after the accident to the defendant's superintendent about the switch, was improperly admitted. (Furst v. Second Ave. R. R., 72 N. Y. 542; Luby v. H. R. R. Co., 17 id. 131; Whitaker v. Eighth Ave. R. R., 51 id. 295.) It was error to refuse to charge "that the defendant had a right to use the switch in question," and if it was properly put down it is not chargeable with negligence. (Lowery v. Brooklyn City & Newtown R. R., 76 N. Y. 28; Mazzetti v. N. Y. & Harlem R. R. Co., 3 E. D. Smith, 98; City of Brooklyn v. Brooklyn City R. R., 47 N. Y. 482; Lockwood v. North Missouri R. R., 34 Mo. 259.)

J. J. Perry, for respondent. If defendant maintains the switch elevated above the level it is liable for the consequences whenever an accident occurs, without negligence upon the part of the injured. (Carpenter v. The Central Park R. R. Co., etc., 11 Abb. N. S. 416.) It is sufficient that the negligence of the defendant's company operated in producing the accident. (Mott v. Hudson R. R. Co., 8 Bosw. 345; Brehm v. Great Western Ry. Co., 34 Barb. 256; Lockhart v. Lichtenthaur, 46 Penn. St. 157.) Whether the appliances and machinery used by the company are the best known in practical use, is a question for the jury, upon the evidence of all the witnesses on that subject. (Steinway v. The Erie Ry., 43 N. Y. 126; 2 Redf. on Railways, 189; Benir v. Delaware & Hudson C. Co., 13 Hun, 254; Lee v. Northern Cent. Ry. Co., 3d department, January, 1879; Weekly Dig., April, 1879, 110.) The fact that numerous other accidents happened at the same switch shows it to be an obstruction and dangerous, and the attempt to show that wagons were caught in that switch in another way from that of this plaintiff can have no effect. (Lee v. N. Cent. R'y; Quinlan v. The City of Utica, 18 Hun, 11,247.) The question of negligence is one for a jury. (Whipple v. The West Phil. Passenger R. R. Co., 6 W. D. 80; Gale v. N. Y. C. & H. R. R. R. Co., 76 N. Y. 594; Ernst v. H. R. R. R. Co., 35 id. 9; Voak v. Northern C. R. R. Co., 75 id. 320; McMahon v. Second Ave. R. R. Co., id. 231.) A corporation is responsible for its neglect to perform the duty imposed upon it. (Conrad v. Village of Ithaca, 16 N. Y. 158; Weed v. Village of Ballston Spa. 76 id. 329.) Defendant is liable in as much as by its charter it obligated itself to replace and maintain the highway in a suitable and reasonably safe condition for public travel. (Todd v. City of Troy, 61 N. Y. 506; Eggleston v. Columbia Turnpike, 8 Weekly Dig. 323.) The evidence as

submitted was conflicting and as such was a question for the jury, and was properly submitted to the jury. (Renwick v. N. C. Ř. Ř. Co., 36 N. Y. 132; Millard v. Pinard, 44 Vt. 34; Ditchell v. Spuyten Duyvil R. R. Co., 5 Hun, 165; Sheehy v. Burger, 62 N. Y. 418; Bidwell v. Lamont, 17 How. 357; Keller v. N. Y. C. & H. R. R. R. Co., 75 N. Y. 24; Hunt v. Lowell Gaslight Co., 1 Allen, 343; Nichols v. Sixth Ave. R. R. Co., 38 N. Y. 131; Fallon v. C. P. & R. R. Co., 64 id. 13; Mangan_v. Brooklyn R. R. Co., 38 id. 455; Borst v. Lake S. & Michigan R. R. Cc., 4 Hun, 346; Kirkpatrick v. N. Y. C. & H. R. R. R. Co., 6 Weekly Dig. 106.) The negligence of the plaintiff, in order to preclude him from recovery, must be such that by ordinary care he could have avoided the consequences, and the jury from the facts are to say whether the plaintiff contributed to the injury. (Beers v. Housatonic R. R. Co., 19 Conn. 566; Colgrove v. N. H. R. R. Co., 2 N. Y. 492; Sheehy v. Burger, 62 id. 588; Green v. Erie R. R. Co., 18 S. R. R. 333; People v.The N. Y. C. & H. R. R. R. Co., 74 N. Y. 595.) The liability of the company to restore the highway intersected by its tracks is a continuing obligation and condition of its rights to oceupy. (Reque v. City of Rochester, 45 N. Y. 129; Mayor v. Sheffield, 4 Wall. 189, 195, 196.) Defendant would be liable for injuries occasioned by any fault in the original construction, or the improper condition, at any time, of its own track, even though such injuries were contributed to by the bad repair of the streets. (Carpenter v. Central Park R. R. Co., 11 Abb. N. S. 416; Colgrove v. N. Y. & N. H. R. R. R. Co., 6 Duer, 382; S. C., 20 N. Y. 492.)

FOLGER, Ch. J.-This is an action brought to recover damages for injury to the person of the plaintiff and to his property. The injury was caused by the upsetting of the vehicle of the plaintiff in which he was going with his goods; and it was upset by striking against a switch of the defendant laid down in its track in the public street in the city of Brooklyn, and rising above the level of the abutting street pavement. The issues made by the pleadings are that the injury came to the plaintiff from his negligence contributing thereto, and that the defendants were guilty of negligence in putting the switch in the public way in the manner that it was laid down, or in suffering it to get into a bad state afterwards, the objectionable manner of laying down and the suffered state as alleged being that it was too high above the surface of the pavement, and made an obstruction dangerous to travel. At the trial the plaintiff recovered, and it is as well in considering the case here, to treat the points made by the defendant in their order as presented in this court, as near as may be. We may remark, however, in passing, that the attention of the parties, and consequently of the trial court, was too much distracted from the real issues in the case to what seems to us the non-essential question of the com

3 A. & E. R. Cas.-26

parative merits of the switches of rival patentees of those articles.

1st. We think that it was for the jury to say whether the plaintiff was guilty of negligence contributing to the injury. It is true that he knew that in that locality was the switch now pronounced an unreasonable obstruction to travel. It does not appear that he had in mind the exact spot at which it was to be met with. It is true that he was not thinking particularly of this switch at the moment of the accident. But he was thinking of the whole space about there as not a place to cross in safety without care in doing so, and was going slowly and conducting himself with greater caution in view of the difficulty of crossing there safely. The exact spot at which was this switch was hidden from his view by the snow and slush that covered it, and which had gathered there from acts of the defendant. Such is his own testimony, sustained and supplemented in some particulars by that of other witnesses. We cannot say, as matter of law, that he was guilty of contributory negligence.

2d. The defendant had the right to put down such appliances in the street as were needful for the convenient use of its franchise to operate a horse-railway. The restriction upon the use of this right is that the use may not be negligent or unskilful, or without reasonable care therein. It is manifest that it was a question of fact, and to be passed upon by a jury under proper instructions from the court, whether the defendant in this case used a switch that was the best for the purpose in general and acknowledged use, and laid it down with proper skill and care, in a proper manner, and so kept and used it. The defendant might have adopted a kind of switch that experience had condemned, or refused to adopt one that experience had shown to be the best or among the best; or using the latter, had at first put it down carelessly or unskilfully; or having at first put it down well, had suffered it or the pavement about it to get out of proper position relatively, or otherwise, so that there was at first or at last an obstruction in the public way, needlessly and unreasonably dangerous to passers over it. These were questions for the jury to try and determine. And if they had testimony which raised them or either of them, and there was no error in the submission of the case to their consideration, their verdict is conclusive.

3d. Whether there was testimony for the jury is a point raised by the motion for a nonsuit. There was testimony of the height of the switch above the pavement; that accidents had not infre quently happened to vehicles passing there; the testimony tended to show that these mischances had come from striking against the switch; there was testimony tending to show that the defendant had put salt upon its track, and thus had caused the slush and snow to run down to and cover the switch from the sight of passers by.

We think that there was testimony for the jury tending to show facts, from which it could be properly argued to them that the switch was raised at first, or afterward became higher, above the pavement than was necessary or reasonable, and being thus raised was left so hidden by slush and snow as not to be seen, in its dangerous state, by drivers of vehicles. We cannot say that there was nothing to leave to the jury upon the question of the defendant's negligence, or want of skill or unreasonable and unnecessary use

of the street.

4th. Errors are alleged to have been made in the charge. The court was asked to charge: "That the defendant had a right to use the switch in question, and if it was properly put down, they are not chargeable." It is probable that this request had reference to the kind of switch, a question much agitated on the trial, and was meant to ask the court to say that the defendant had as good a right to use the Wharton No. 2 switch as the Johnson switch. Possibly it is not so however, and we will treat it as a request referring to the switch used, without regard to what patent it was of. Thus viewed, it will be seen that the request considers only the character of the switch, and the manner of the laying of it down, in the first instance. The request does not consider what may have taken place since it was laid down, either by the raising of the switch or the depression of the surrounding pavement. The switch may have been of a good pattern and design, and well laid down; but if the frost or other force of nature had raised it to an undue height above the adjacent pavement, or by any cause that pavement had been sunk unduly below it in level, and it was the duty of the defendant to meet and avoid this changed condition, it might be liable. The request to charge left out this idea. It was in testimony that this switch was one to be maintained by the defendant, which had the direction and the duty whether it should be changed or altered in its relation to the surrounding pavement. It was a fair inference that, as between the defendant and the other street railway, whose tracks the defendant reached for use by means of this switch, the defendant was to keep the switch and the abutting pavement in good condition. This case differs in this respect from that of Lowery v. B. C. & N. R. R. Co. (76 N. Y. 28). There the defendant was to lay down the switch, after that the connecting railway company was to keep in repair the abutting pavement. The decision in that case went upon that fact, that it was the duty of the connecting company, and not of the defendant there, to keep in repair the pavement about the switch. The request having left out this idea of an after change in the relative position of the switch, was not one that the defendant had a right to have granted, in the terms in which it was put to the court, and the court did not err in not charging it in terms or in substance.

But the court not only declined to charge as requested, but did

charge in terms, that if it was skilfully put down, and was in itself no obstruction that a person could not, with ordinary care and prudence avoid, that proposition would be correct. This instruction was excepted to, and we are to determine whether it was legally correct. We think that it was. The streets of a city are primarily for the use of all its residents, in the most general mode of use. The sidewalks are for the whole community to pass to and fro upon on foot. The carriage way is for them to do so in their own vehicles, of a kind in customary use and in ordinary mode. Being for the use in this way, there cannot be asked of the citizen more care and prudence in going to and fro than that ordinarily put forth by men in general. True, what is ordinary care and prudence, upon a street used for no other purpose than the passage of men on foot or in the vehicles in general use, is of course less in degree than that which should be shown upon a way upon which a street railway had by right been laid down. But yet the degree of care and prudence needed upon the latter, though greater, may still be characterized as ordinary. It is that which most men, men of discretion in their conduct of themselves and their property, careful for the protection of their life and limb and property, will show in passing in such a street. Doubtless there may be in the needs of a street railway, occasion for placing in a public street some fixture that will prove a complete obstacle to passage over it by ordinary means and modes, and which all men must, of imperative necessity, turn completely aside from. But a switch, as such a thing is known to us to be, is not that fixture. It is one the use of which by the railway proprietor is compatible with the general use of the street by citizens. And it is incumbent upon the owner of the special franchise to use a switch put down in a manner that is consonant with the general rightful use of the same public way. That general rightful use is such use as men of ordinary care and prudence, having knowledge of the general location of the switch, will exercise when passing over that part of the public way at which the switch is laid down. The duty of the railway proprietor, and that of the citizen, are relative to each other. The former has the right to put down in the street such fixtures as are needful for the convenient use of his right of peculiar passage. The latter is bound to expect to meet such fixtures in the use of his common right of travel over the street, and is bound to use that care in approaching and passing by or over it, on foot or in vehicle, that men of ordinary care and prudence would put forth in the same locality and circumstances. This, we think, was the rule laid down in the reply of the trial court to the request to charge that we are now noticing. The purport of the whole charge is to the same end. The jury was told correctly, so far as it affected the defendant, of the right of the defendant, of the duty upon the plaintiff to put forth a greater degree of care in view of that right, and that it was such as