Third Department, November, 1915. [Vol. 170. upon a dismissal of the complaint by direction of the court at the close of the case upon a trial before the court and a jury. The plaintiff recovered a judgment in a Justice's Court for $175, and an appeal was thereupon taken to the County Court, the appellant asking for a new trial therein. F. Andrew Hall, for the appellant. James McPhillips, for the respondent. LYON, J.: The defendant owned and operated an electric street railway in the city of Saratoga. The rails used by it were the ordinary eighty-pound Trails in common use by steam railroads. At street crossings there was placed inside its main rail another T rail to serve the purpose of a guard rail. guard rail. In order to reduce the open space between the heads of the main and guard rails a portion of the base of one of the rails was chiseled off. The rails were then bolted together in order to make a rigid construction, and were spiked to the ties. There was thus left between the heads of the rails a space one and one-half inches wide and about four inches deep. Through this space, which had been filled with gravel to within one and one-half or two inches, or thereabouts, of the surface of the rails, the flange of the car wheel ran. The street crossing between the guard rails and for a space of two feet outside the main rail was paved with brick which were fitted tightly against the rails. While the plaintiff was driving across the defendant's tracks at a street crossing, one of the calks of the horse's shoe became wedged in the space between the main rail and the guard rail and the foot was so badly injured as to render the horse practically valueless. The complaint charged negligence upon the part of the defendant in maintaining T rails at street crossings in violation of the statute forbidding the use of center-bearing rails; in failing to suitably cover or guard the opening between the main and guard rails, and in failing to use grooved rails. Section 192 of the Railroad Law (Consol. Laws, chap. 49; Laws of 1910, chap. 481), formerly section 109 of the Railroad Law (Gen. Laws, chap. 39 [Laws of 1890, chap. 565], as added by Laws of 1892, chap. 676), provided as follows: "No street App. Div.] Third Department, November, 1915. surface railroad corporation shall hereafter lay down in the streets of any incorporated city or village of this State what are known as 'center-bearing' rails; but in all cases, whether in laying new track or in replacing old rails, shall lay down 'grooved' or some other kind of rail not 'center-bearing approved by the local authorities. Such grooved or other rail shall be of such shape and so laid as to permit the pavingstones to come in close contact with the projection which serves to guide the flange to the car wheel." The question as to whether Trails are "what are known as 'center-bearing' rails" was sharply contested upon the trial. The civil engineer called by the plaintiff testified that a T rail was a "centerbearing" rail and not a grooved or girder rail. The expert witness called by the defendant testified that neither the T rail, nor the girder rail is known to engineers as a centerbearing" rail, but that a rail for a two-flange wheel is the rail known as a "center-bearing” rail. It appeared that two accidents of a similar nature had occurred at this crossing within the preceding three or four months. The T rail as well as the groove rail were exhibited to the jury and the situation at the crossing fully described. At the close of the evidence the defendant moved for a nonsuit upon the grounds, among others, that there was no evidence to justify a jury in finding that the accident was caused through the negligence of the defendant; and that it affirmatively appeared that the type of rail used by the defendant was not an improper construction. The court granted the nonsuit, remarking, "I think that is so; that is the question that is in my mind. The question is whether that is a center-bearing rail. I am satisfied in my mind as to what I should do, that this is not a center-bearing rail. If it was a center-bearing rail it would alter the proposition. I see no negligence in this case, and there is no question for the jury, and the motion is granted." To this ruling the plaintiff excepted. We think that under the evidence it was a question of fact for the jury whether a T rail was ordinarily known as a center-bearing rail; also as to whether the defendant was negligent in maintaining such a construction at this crossing. Third Department, November, 1915. [Vol. 170. The judgment should, therefore, be reversed and a new trial granted, with costs to the appellant to abide the event. All concurred; SMITH, P. J., in opinion, in result. SMITH, P. J. (concurring in result): The experts have differed as to what technically speaking is a center-bearing rail. From a reading of the entire statute, however, it is apparent that the rail proscribed is a rail to which the pavement cannot be laid up plumb upon both sides. As this combination of rails permits of the construction which seems to be contemplated by statute as the proper construction, in my judgment the jury should not be allowed to say whether or not this is technically a center-bearing rail, but the court should hold, as matter of law, that the requirement of the statute in that respect had been observed. These rails were so shaped and placed together at such distance as to permit the calk of the horse's shoe to become wedged in and cause this injury. Whether this constituted negligent construction would, in my judgment, be a question for the jury, and the only question which should be submitted to the jury in determining the defendant's liability. Judgment reversed and new trial granted, with costs to appellant to abide event. Before STATE WORKMEN'S COMPENSATION COMMISSION. In the Matter of the Claim of MARCELLA J. WOODCOCK for Compensation to Herself and Children Arising Out of the Death of HIRAM L. WOODCOCK, v. FRED S. WALKER, Employer, and EMPLOYERS' LIABILITY ASSURANCE CORPORATION, LTD., Insurance Carrier. Third Department, November 10, 1915. Workmen's Compensation Law-right of widow to compensation awarded to minors. Under section 16 of the Workmen's Compensation Law the surviving wife and principal dependent is entitled not only to thirty per cent of the average wages of the deceased during her widowhood but also to the App. Div.] Third Department, November, 1915. additional amount of ten per cent of such wages for each minor child until the age of eighteen years. It seems, that it was not the intention of the Legislature to require the appointment of a general guardian in order to enable children to collect the amounts awarded to them under the statute. CERTIFICATION of a question of law by the State Workmen's Compensation Commission to the Appellate Division under section 23 of the Workmen's Compensation Law (Consol. Laws, chap. 67; Laws of 1914, chap. 41). The question certified is as follows: May the compensation of Celia Grace Woodcock, Don C. Woodcock and Margery L. Woodcock, minor children of the deceased, be paid to Marcella J. Woodcock, widow and principal dependent of the deceased? Bertrand L. Pettigrew [Walter L. Glenney of counsel], for the employer. Jeremiah F. Connor, for the Workmen's Compensation Commission. Egburt E. Woodbury, Attorney-General [Harold J. Hinman, Deputy Attorney-General], for the Workmen's Compensation Commission. SMITH, P. J.: The employer and insurance carrier stand neutral upon this question. All parties simply desire an interpretation of the law, that it may be determined to whom the moneys allotted to the infant children of the deceased shall be paid. Section 16 of the Workmen's Compensation Law (Consol. Laws, chap. 67 [Laws of 1914, chap. 41], as amd. by Laws of 1914, chap. 316) provides that "If the injury causes death, the compensation shall be known as a death benefit and shall be payable in the amount and to or for the benefit of the persons following: * * * * * "2. If there be a surviving wife * thirty per centum of the average wages of the deceased during widowhood * * *; and if there be surviving child or children of the deceased under the age of eighteen years, the additional amount of ten per centum of such wages for each such child until of the age of eighteen years." Third Department, November, 1915. [Vol. 170. This provision of the statute would seem to authorize the payment to the wife not only of her thirty per cent, but of the additional amount which is allotted for the support of the several children. This conclusion is supported by the provision of section 20 of the Workmen's Compensation Law (as amd. by Laws of 1915, chap. 167), which authorizes the wife as the principal dependent to make an agreement with the employer, subject to the approval of the Commission, as to the payment of the award both to herself and for her children. There is no other provision in the act as to the payment of the award to infant children, and it does not seem probable that it was the intention of the Legislature to require the appointment of a general guardian with an attendant expense in order to enable the children to collect the amounts allotted to them under the act. Under the Domestic Relations Law (Consol. Laws, chap. 14 [Laws of 1909, chap. 19], § 80), in regard to real estate, if there be no general guardian the mother is the general guardian of the infants. This law by analogy tends to support the construction thus given. All concurred. Question certified answered in the affirmative. Before STATE WORKMEN'S COMPENSATION COMMISSION, Respondent. In the Matter of the Claim of HENRIETTA L. WALZ and Others, Claimants, Respondents, for Compensation to Themselves for the Death of CHARLES L. WALZ under the Workmen's Compensation Law, v. HOLBROOK, CABOT & ROLLINS CORPORATION, Employer and Self-Insurer, Appellant. Third Department, November 10, 1915. Workmen's Compensation Law-minor sister of deceased partly dependent upon his voluntary contributions, entitled to compensation. A person at the time of his accidental death while engaged in a hazardous occupation was twenty-three years of age and unmarried, and had always lived in his father's family, and had voluntarily paid to his |