57 Misc. 636 | N.Y. Sup. Ct. | 1908
On September 1, 1905, an opening was made in the street bed at the entrance to the Ninety-ninth Street Ferry, between Ninety-ninth and One Hundredth streets, in order to shift the silt basin. The work was being done by employees of the Uvalde Asphalt Paving Company, pursuant to a contract with the city; and a city inspector was in charge of the men to see that the work was properly done. On said 1st day of September, 1905, the workmen made an opening in the asphalt pavement, in the street, about twelve feet long, two feet deep and two feet wide. On September 2, 1905, before the job was completed, the men ran short of pipe; and they suspended work, after filling in the excavation temporarily. The next day was Sunday and the day following that was Labor Day, so that the work was not resumed until September 5, 1905. On September second, about the time the men were leaving the job, it commenced to rain; and it continued to rain with such abundance that, on September third, the entire street was covered with water, from curb to curb, to a depth, of about a foot and a half. On said third day of September, at about four o’clock in the afternoon, while the street was still covered with water, plaintiff’s servant, one Scora, was driving plaintiff’s wagon to market through said street, and the wheel of plaintiff’s wagon sunk into a hole in said excavation, causing the wagon to overturn and resulting in damage for which plaintiff seeks to recover in this action. The case was tried without a jury and, at the close of the testimony, the complaint was “ dismissed for failure of proof.” Plaintiff appeals. The son of plaintiff saw the scene of the accident, when the water had run off, and found a hole there five or six feet wide, where it was sunken down.
Even so, it will be remembered that it had begun to rain before the men had left the work; and, in any event, it was the duty of the city to anticipate and provide for the natural
The judgment is reversed and a new trial granted, with costs to appellant to abide the event.
Seabury and Gerard, JJ., concur in result.
Judgment reversed and new trial granted, with costs to appellant to abide event.