Legal Opinion

Fash v. Third Avenue Railroad

New York Court of Common Pleas

Decided May 15, 1861PublishedCited by 7 opinions

Appeal by the defendants from a judgment entered on a .verdict of the jury at the Trial Term. ■ The action was brought to recover damages for injuries to the plaintiff by his being thrown from his carriage, caused by its coming in contact with spikes protruding frour the rail or sleeper of the defendants’ road in Third avenue. The road was at the time of the injury temporarily located at one side of the street, to enable the city corporation to construct a sewer.

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Appeal by the defendants from a judgment entered on a .verdict of the jury at the Trial Term. ■ The action was brought to recover damages for injuries to the plaintiff by his being thrown from his carriage, caused by its coming in contact with spikes protruding frour the rail or sleeper of the defendants’ road in Third avenue. The road was at the time of the injury temporarily located at one side of the street, to enable the city corporation to construct a sewer. The paving blocks next the rails bad settled.below the rail, so as to leave the spikes exposed. The defense was, that the settling…

1Opinion of the Court

By the Court.

Brady, J.

The cause of the injuries sustained by the plaintiff in this action was the projection of iron spikes from component parts of the bed or support of the rails laid down by the defendants. It was wholly immaterial whether the projection was caused by the failure of the Corporation of the City of New York to repair the street in the locality of the accident. In the language of the Judge who presided at the trial, the defendants " having undertaken to lay down a rail track along the avenue, which was a public road, they were bound to lay it down properly, and to see that it…

2Cited by7 opinions

  1. Worster v. Forty-Second Street & Grand Street Ferry RailroadNew York Court of Appeals · 1872
  2. Fitts v. Cream City RailroadWisconsin Supreme Court · 1884
  3. Wood v. Third Avenue RailroadNew York Supreme Court · 1895
  4. Worster v. Forty-second Street & Grand Street Ferry R. R.New York Court of Common Pleas · 1870
  5. Bell v. New York Central & Hudson River RailroadNew York Supreme Court · 1883

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