James v. Delaware, Lackawanna & Western Railroad

O’Brien, J. (dissenting in part).

I agree that the county was properly held. This part of the judgment must rest upon the theory that, irrespective of any duty to repair, the county was guilty affirmatively of negligence in demolishing the railing. The part of the judgment at Trial Term whereby liability for failure to repair is imputed to the town, seems to me also correct. As I read the law, the statutory duty to repair was cast on the town rather than the county or the State. (Railroad Law; Cons. Laws, ch. 49, § 93.)

The Legislature has drawn a clear distinction between highways and bridges.…