Healy v. Vorndran

Hatch, J.: This action is brought to recover damages for personal injuries averred to have been sustained by the plaintiff by reason of the [354] negligence of the defendant in leaving unguarded a hole or excavation on her premises contiguous to the street. The complaint avers that the negligence consisted, briefly stated, in the defendant’s failure to fence, enclose or protect a piece of land belonging to her on the southerly side of One Hundred and Forty-seventh street, in the city of Hew York, and to properly enclose, protect and fence a crib, crate or structure or arrangement made of boards, planks or timbers placed across each other at angles, leaving a space between them, forming a sort of network on the top, and which crib, crate or structure was even with or rested on or near the sidewalk, and was supported by posts, beams, planks or boards upon said lot, and allowing the same to continue in such a condition, position and proximity to the street, and in failing to provide proper safeguards to prevent young children from being enticed or. allured from the street upon the crib or upon the land of the defendant. That the plaintiff, while attempting to remove a young child from a dangerous position on said crib, in the evening, and to save him from falling and being injured, slipped between the sidewalk and one of the planks of the crib and fell or was thrown down into a hole or space, opening or gully along and between or in front of said crib and the sidewalk, and was severely hurt and injured and her left arm broken between the elbow and wrist. At the close of the plaintiff’s case the complaint was dismissed. As I view the case, the evidence tended fairly to support the averments of the complaint. The premises of the defendant were vacant, except for a structure which is spoken of as a “ crib ” or “ crate ” which was used for the purpose of piling or storing lumber. The hole into which the plaintiff fell was shown to be about twelve ■ feet deep, three feet wide, and ran for about fourteen feet within twenty inches of the edge of the city sidewalk. The use which had been made of the premises in hauling in and out the lumber and other materials had to some extent broken down the edge of the sidewalk upon this space of twenty inches, but it was used as part of the walk by pedestrians. The hole itself had existed for a considerable time and was not protected by any guard or light at night. As the plaintiff was proceeding along the walk she saw a neighbor’s child sitting upon a timber near the hole. Thinking the child was in danger she took a single step to the side to pick it up, stepped [355] upon some clay by the beam, fell into the hole, going down until her head was about on a level with the sidewalk. In falling she struck her arm upon one of the timbers of the crib or crate, which stopped her fall and broke her arm, on account of which she avers that she sustained permanent injury. Yo evidence was given on the part of the defendant. I am of opinion that the dismissal of the complaint was unwarranted and constitutes reversible error. The question of defendant’s negligence and the plaintiff's contributory negligence upon the testimony were questions of fact which should have been left for the jury to determine, under proper instructions from the court. When an owner makes an excavation on his own land so near to the highway as to render travel thereon dangerous and fails to guard it, he is chargeable with negligence by a person sustaining injury therefrom, in the absence of negligence on the part of the party injured, contributing thereto. (Beck v. Carter, 68 N. Y. 283; Thompson v. New York Cent. & H. R. R. R. Co., 41 App. Div. 78.) The defendant, under such circumstances, is in no measure relieved by the fact that in making use of his property and maintaining a hole he has invaded the sidewalk and to some extent destroyed it The particular act here complained of, and the one on account of which the plaintiff sustained injury, was the existence of a hole into which the plaintiff fell. That hole was maintained by the defendant, and the jury were authorized to predicate negligence thereon, if the plaintiff was without fault. It is of small consequence whether the plaintiff was right or wrong in supposing that the child she went to rescue was in danger. She had the right so to suppose, and in turning aside to secure it was not engaged in an act which can be characterized as negligence as matter of law. She had the right to assume that the sidewalk was safe and also to assume that the plaintiff maintained no pitfall in immediate proximity to the walk, and in the absence of knowledge or warning of the existence of the hole her act would not, necessarily, constitute contributory negligence. (Jennings v. Van Schaick, 108 N. Y. 530; Chisholm v. State, 141 id. 246; Ayres v. Del., L. & W. R. R. Co., 158 id. 254, 259.) Yor can the plaintiff be charged as a trespasser in any such sense [356] as would bar her right to a recovery. The locus in quo was actually used up to the edge of the timber as part of the sidewalk, and the case, in principle, falls within the rule of the authorities which we first cited. The warning was placed upon the back of the crib, some distance from the walk, and was doubtless intended to warn people going upon the premises. It does not appear that it was seen by the plaintiff, or that it could be at the time when she received the injury. In any event, whether it was sufficient as a warning of w'hich the plaintiff was bound to take notice, was a question of fact for the jury. If these views are sound, it follows that the judgment and order should be reversed and a new trial granted, with costs to the appellant to abide the event. Van Brunt, P. J., and Patterson, J., concurred ; Ingraham and Laughlin, JJ., dissented.