79 N.Y.S. 825 | N.Y. App. Div. | 1903
The plaintiff, passing along a public sidewalk in the city of New York, fell into an unguarded excavation. He has obtained judgment for personal injuries against the defendant, Peter Herter, who owned the premises where the excavation was making, incidental to certain building work. The defendant attacks the judgment upon three grounds:
2. It is urged that it was error to admit certain city ordinances in evidence. The first ordinance (section 220, Rules and Ordinances of the City of New York) related to the duty of those “engaged in digging down any road or street, in paving any street, building any sewer or drain, trench for water pipes, or digging and building a well in any of the public streets,” to erect a fence or railing at such excavation or work in such manner as to prevent danger to passengers who may be traveling upon such streets. It is contended that there was no comr petent evidence in the case that the excavation encroached upon the public street. The witness Policeman Brittin testified that the excavation extended for 3)/^ or 4 feet, about to the center of the sidewalk, meaning by the term “sidewalk” the distance clear from curb to building line, and that a portion of the area walls, where “they had started to build out the vaults,” was outside of the edge of the sidewalk, that a portion of the area wall toward the north was built up level-with the street,—not the whole of it,—and that he was positive of these things because he had made a thorough examination upon a report. He further testified that the cutting extended 4 feet outside of the stoop line, which line was from 3^2 to 4)^ feet from the building proper, and that, although he had never made a survey to locate the stoop line, he had made measurements as he had seen it. ■ The witness Policeman Willett testified that in making out reports, etc., he had gained experience in stoop lines,—in regard to signs and things placed beyond them,—that the stoop line was always considered about 3yz feet from the face of the building, that this excavation was .5 or 53^ feet out from the front of the building, and that the sidewalk was outside of the stoop line. And Brittin also testified that the wall of the defendant’s building was flush with the faces of the other buildings. Again, Willett testified that the excavation extended 3% feet beyond 'the area line toward the curb. The defendant’s superintendent O’Reilly testified that the area wall was the line that divides the highway from private
3. It is said that the plaintiff failed to show absence of contributory negligence, in that in daytime he walked into a cutting 50 or 60 feet long, x 5 feet deep, and 4 or 5 feet wide. And it is pointed out that the plaintiff testified that he passed by the building, walked about a block, returned, and, in attempting to pass two women who were in front of him, fell into the excavation. But this cutting did not yawn in the way, so that one not stargazing or woolgathering would halt before it, or one stepping into it would be guilty of contributory negligence in view of a known and obvious danger in his path. The situation was quite difficult. Even though the cutting had encroached upon the sidewalk for several feet, or had abutted on the sidewalk as then constituted, it had not been left as a pit open in the way. There was still a sidewalk for passengers. This sidewalk had either been narrowed for 60 feet by the excavation, or such an excavation for 60 feet abutted the sidewalk then in use. A barrel near the north side and another on the south side of the building were placed on the edges of the cavity, but there was nothing whatever along the side by way of guard or protection. It is entirely natural that these barrels both masked the hole and also served to indicate that part of the sidewalk which was open and free for passengers, and so, after one had entered upon the way thus indicated, he was walking along the brink of an unguarded excavation, but not toward a pit directly in his way. I think that under the circumstances the question of contributory negligence was properly submitted to the jury.
The judgment and order should be affirmed, with costs. All concur.