Burchard v. Payne

¶1(dissenting):

¶2Mr. Justice Woodward advises reversal of this judgment on the sole ground that the notice provided for, un'der certain conditions, in the Railroad Law, section 93, was not given to the railroad. I do not think any notice was required of the Highway- Commission. Section 93 of the Railroad Law (as amd. by Laws of 1916, chap. 484),* covering the circumstances existing here, reads as follows: “ When a highway crosses a railroad by an overhead bridge, the framework of. the bridge and its abutments shall be maintained and kept in repair by the railroad company, and the roadway thereover and the approaches thereto shall be maintained and kept in repair by the municipality having jurisdiction” over and in which the *835same are situated.” Then follows the exception to which Mr. Justice Woodward refers and upon which, if followed, this defendant escapes liability. It is as follows: “Except that in the case of any overhead bridge constructed prior to the first day of July, eighteen hundred and ninety-seven, the roadway over and the approaches to which the railroad company was under obligation to maintain and repair, such obligation shall continue, provided the railroad company shall have at least ten days’"notice of any defect in the roadway thereover and the approaches thereto,” which notice must be in writing, etc. The learned judge says that if it was not for the alleged omission the judgment should be sustained. That exception does not apply to ¿onditions here, unless we are going to hold that the railing was not a part of “ the framework of the bridge,” and affirmatively hold that the railing is a part of the “roadway ” and “approaches.” I do not think it bears any such construction; I think the railing was a part of “ the framework of the bridge ” which under the law the defendant railroad company was bound to keep in repair and without notice.

¶3I favor affirmance.

¶4Judgment and order reversed and new trial granted, with costs to appellant to abide event.