50 Barb. 358 | N.Y. Sup. Ct. | 1868
By the Court,
This action was brought to recover damages sustained by the plaintiff, by falling into an area or hole, which the defendants ■ had excavated on their premises situated on Bedford avenue, in the city of Brooklyn. It appears from the case that the defendants were building two houses on said premises, and that on the night of the first of March, 1867, the plaintiff, while walking along the sidewalk of said avenue, which is an open public street, in front of said buildings, came upon a pile of earth and stones, which the defendants had thrown out on the sidewalk, and which lay immediately in front of the area or hole mentioned. The night was dark, and the plaintiff in his effort to pass this obstruction, took an inward course towards the defend
The verdict of the jury must be deemed conclusive upon the point, whether the plaintiff in endeavoring to pass the obstruction in question used due and proper care and caution. The defendants, however, contend that because the plaintiff received the injury while upon their land without their license or authority, he cannot recover. It is not necessary to decide the question whether the making an excavation so
These cases affirm the liability of a party who makes an excavation upon his own land so near to a highway that a person- lawfully using the highway, and using ordinary caution, accidentally slipping might fall-into it, tin the ground x that-such an excavation amounts to a public nuisance: The case of Howland v. Vincent, (supra,) would seem to hold a contrary doctrine. ' But upon examination it will be seen the court did not consider the question of nuisance, nor was the ' point presented: We think the principle is a sound one. The case before us, however, does not need that principle to sustain-the'verdict, for as- before remarked, the defendants not only made an excavation in dangerous proximity to the street, but they at the same time obstructed the street in such a manner that the plaintiff, following his natural instincts and inclinations, and exercising due care and caution, ■was, without any warning against danger, led directly towards vthe excavation, and thus received the injury of which he complains. The obstruction was the primary cause" of the accident. The defendants'had no right "to place it there ; "certainly not without taking all needful precaution to guard passengers' against all the dangers which to-they might be exposed in the' use of the streets. For these reasons we are of opinion that there was no error in the ruling of the court below, ■ and the judgment and order, refusing a new trial, should be affirmed. :
Lott, J. F. Bamard and Gilbert, Justices.]