89 N.Y. 266 | NY | 1882
We concur in the opinion of the General Term that the liability of the defendant, as presented to the jury in the charge, was erroneously made to depend upon the question whether the bridge obstructed or hindered the enjoyment of the highway by the public, independently of the further question whether the company in the exercise of the right to construct its road across the highway had, in compliance with the requirements of its charter (Laws of 1846, chap. 195, § 5), restored “ the highway, as near as may be, to its former state so as not unnecessarily to impair its usefulness.” The court charged that if the bridge obstructed or hindered the enjoyment of the public in the highway, it was a nuisance, and the defendant was guilty under the indictment, and further that the question to be passed upon by the jury, was whether the bridge is so constructed “ as not to’impair the usefulness of the road, and to interfere with the enjoyment or safety of the public in their right to travel upon the road.” The exception to the charge, although somewhat informal and inexact, fairly construed, raises, we think, the point whether the charge was correct in the particular mentioned. The highway, when the defendant’s road was constructed, and until 1868, was owned
The construction of defendant’s railroad across the highway was authorized by-law. This method of crossing below the highway, was manifestly much safer than if the crossing had been on grade. While the right of the defendant to cross below grade is not' disputed, it is claimed in behalf of the people that the duty of restoration imposed by the de
We think the order should be affirmed.
All concur, except Tbacy, J., absent.
Order affirmed.