76 N.Y.S. 321 | N.Y. App. Div. | 1902
This is an action of negligence to recover for personal injuries sustained by the plaintiff by being struck and run over by a freight car of the defendant in the city of Syracuse on the 20th of June, 1901. The plaintiff was a canal boatman in the employ of one Butler, who was operating two boats, each 96 feet in length, at the time of the infliction of the injuries. The boats came into Syracuse on the canal on the evening of the 19th of June,
While the constitution prohibits the legislature from selling or leasing the Erie Canal (Const. 1894, art. 7, §.8), yet the superintendent of public works is given supervisory power over these lands and of any railroad within 10 rods of the canal “to preserve the free and public use” of the canal (Laws 1894, c. 338, § 25), which implies that a license or privilege may be accorded to a railroad company to construct its tracks and operate its cars within the blue line, but under the direction of the state authorities. We must assume, therefore, that the defendant is not a trespasser in running along next to the berm bank at this place. It is also a deduction from the evidence that the plaintiff was not a trespasser in going over this track. The boats were in the habit of tying up at the
Plaintiff’s exceptions sustained, and a new trial granted, with costs to the plaintiff to abide the event. All concur, except DAVY, J., who dissents.