APPEAL from a judgment of the Supreme Court in favor of plaintiff, entered March 24, 1954, in Bronx County, upon a decision of the court at a Trial Term (EVANS, J.), without a jury, insofar as it awarded the defendant City of New York recovery and judgment over against the defendants Lehman and others as trustees.
Edward D. Burns of counsel (Addison B. Scoville and Stuart Riedel with him on the brief; Saxe,
Bacon, O'Shea & Bryan, attorneys), for appellants.
Fred Iscol of counsel (Seymour B. Quel with
him on the brief; Leo A. Larkin, Acting Corporation Counsel, attorney),
Plaintiff, while walking across Melrose Avenue, in Bronx County, caught her foot in a hole underneath the rail of an unused trolley track, pitched forward and sustained serious injuries. There was testimony that the cobblestone roadway sagged a good six inches below the lip of the rail at the point where the accident occurred, and that this condition had existed for several months.
Until some years before the date of this accident the Third Avenue Railway Company, which defendant trustees have succeeded in interest, had operated a street surface railway over these
tracks. Plaintiff sued the City of New York and the trustees. After trial without a jury, she secured a judgment against all defendants. The Trial Justice then directed judgment over against the trustees, and in favor of the city, on the latter's cross complaint. None of the defendants raises any question with respect to liability to the plaintiff; but the defendant trustees appeal from the judgment rendered on the city's cross complaint.
On November 9, 1940, the city and the railway company entered into a contract permitting the railway company to operate buses in place of streetcars in the city of New York, and by its terms imposing the following obligations on the company whenever such substitution was effected:
'Article Thirteen * * *
'Section 2. Anything in any statute, law, franchise, consent, local law,
ordinance or requirement of any kind whatsoever to the contrary
notwithstanding, when and as all street railway operation on any part of a
street shall cease and bus operation superseding such street railway operation
thereon shall be effected, to the extent and as provided in the Bus Agreements,
then and from thenceforth the Railway Companies, and each of them, and their
and each of their successors and assigns, shall not be under any duty,
liability or obligation of any kind whatsoever to pave or repave or have or
keep in repair any part of the railroad area in such part of such street,
except to repair the existing pavement within the said railroad area so long as
its tracks remain in such part of such street. * **
'Section 8. Subsequent to the cessation of the operation of street surface railway on any street, and until removal of Company Structures as hereinabove required, and while any property, title to which is in any Railway Company, remains in the street each Railway Company shall remain as fully liable for any and all claims for damage to persons and property occasioned by, or growing out of, the presence of its tracks and track structures and property in any street as it would have been with respect thereto prior to such cessation.'
The liability of the railway company prior 'to the cessation of the operation of street surface railway' was fixed by section 178 of the Railroad Law, which reads as follows:
'§ 178. Repair of streets; rate of speed; removal of ice and snow.
'Every street surface railroad corporation, so long as it shall continue to use or maintain any of its tracks in any street, avenue or public place in any city or village, shall have and keep in permanent repair that portion of such street, avenue or public place between its tracks, the rails of its tracks, and two feet in width outside of its tracks, under the supervision of the proper local authorities, and whenever required by them to do so, and in such manner as they may prescribe; but nothing contained in this section shall require any street railroad corporation to make pavements or repairs over openings made in the streets by any person, municipality or corporation other than such street railroad corporation, for any purpose other than the pavement or repavement of the street. In case of the neglect of any corporation to make pavements or repairs after the expiration of twenty days' notice to do so, the local authorities may make the same at the expense of such corporation, and such authorities may make such reasonable regulations and ordinances as to the rate of speed, mode and use of tracks, and removal of ice and snow, as the interest or convenience of the public may require. A corporation whose agents or servants wilfully or negligently violate such an ordinance or regulation shall be liable to such city or village for a penalty not exceeding five hundred dollars, to be specified in such ordinance or regulation.'
The city, under the common law, and the trustees, under section 178 of the Railroad Law, were each charged with similar duties to maintain the railway area of the street in good condition (Hayes
v. Brooklyn Heights R. R. Co., 200 N.Y. 183). The trustees contend
that they were not active or primary wrongdoers, that they and the city were
therefore joint tortfeasors in pari delicto, and that neither may recover against the other on any theory of implied indemnity (Oceanic Steam Nav. Co. v.
Compania Transatlantica Espanola, 134 N.Y. 461; New York Consolidated R. R. Co. v. Massachusetts Bonding & Ins. Co., 193 App.Div. 438, affd. 233 N.Y. 547;
McFall v. Compagnie Maritime Belge, 304 N.Y. 314).
The Trial Justice was evidently inclined to agree with this contention of the trustees. He nevertheless directed judgment in favor of the city, on the theory that under the 1940 agreement the railway company assumed a contractual obligation to indemnify the city for claims such as these. On the record before us, however, as enlarged by stipulation, there is no basis for spelling out such an agreement of indemnification within the
four corners of the 1940 contract. But the contract does clearly provide that the change to bus operation does not in any respect change the obligation of the company to keep its track area in permanent repair, pursuant to section 178 of the Railroad Law.
The sole question posed on this appeal, therefore, is whether the effect of section 178 is to impose upon the trustees the initial and paramount duty of keeping the track area in repair, so that the city's liability is only secondary.
Section 98 of the Railroad Law of 1890 (L. 1890, ch. 565) was the predecessor to the present section 178, and they are almost identical in terms. Prior to the enactment of section 98 it was the practice of municipalities, before granting permission to lay railroad tracks upon their streets, to require a covenant that as partial consideration for the franchise ...