| N.Y. App. Term. | Dec 15, 1905
The defendant was sought to be held liable for its negligence in failing to light or guard an excavation,
The excavation was distant from the sidewalk some three or five feet, according to the different witnesses, and, while it may be that a pedestrian who had unintentionally deviated from the sidewalk — excusably because of the darkness — could have recovered for an injury caused by the proximity of the excavation (Beck v. Carter, 68 N.Y. 283" court="NY" date_filed="1877-01-30" href="https://app.midpage.ai/document/beck-v--carter-3628823?utm_source=webapp" opinion_id="3628823">68 N. Y. 283); the plaintiff’s claim, as developed by the proof, is founded upon no such principle of liability.
Bie did not wander from the strict lines of the highway; he left it deliberately and fell into the excavation which he found at a place known to him not to be the highway. The question, therefore, whether this excavation should have been guarded, in the exercise of reasonable care for the safety of persons using the street, was not in the case; and this was the measure of the defendant’s duty, as indicated by i be averment of negligence in the complaint.
The proof that the private land was used by the public for the purposes of crossing, would have a bearing upon the plaintiff’s contributory negligence, or, in an action against the owner of the land, upon the main question of negligence; but it had no bearing upon the negligence of this defendant, under the allegations of the complaint, nor was a new issue of negligence, upon this theory, litigated by consent, since the evidence of the license to use this unfenced lot was stated by the plaintiff to be merely explanatory of the situation and locality.
Again, there was nothing to connect this defendant with the license given by the owner of the land, whether by notice or otherwise; and its duty of guarding the excavation for the protection of the licensees was not apparent from anything which the proof suggested.
The complaint was properly dismissed for failure of proof and the judgment is therefore affirmed, with costs.
Soott and MacLeah, JJ., concur.
Judgment affirmed, with costs.