Pace v. Brooklyn & Queens Transit Corp.

In an action to recover damages for personal injuries sustained by plaintiff Nicoletta Pace as the result of a fall from an automobile as it struck a hole adjacent to railroad tracks of the appellant, and by plaintiff Leonardo Pace for loss of services, judgment for plaintiffs unanimously affirmed, with costs. It is 830 established that the place of the happening of the accident was to the west of the temporary detour as actually constructed. Pursuant to agreement, the appellant permitted insertion of a flange or guard rail at or about the place of the accident and, according to it, the replacement of other rails and removal of granite blocks. This work, whatever its nature, was completed long before the happening of the accident and appellant’s obligation, even if it may be assumed that it had been suspended, thereupon reattached. (McCarthy v. Brooklyn & Queens Transit Corp., 254 App. Div. 757; affd. without opinion, 279 N. Y. 737.) In any event, the voluntary agreement made with the Long Island State Park Commission could not and did not purport to relieve appellant of its liability pursuant to section 178 of the Railroad Law. Present — Lazansky, P. J., Hagarty, Johnston, Taylor and Close, JJ.