Monahan v. Empire City Subway Co.

MacLean, J. The plaintiff testified that, at four o’clock in the morning of December 29, 1905, he was walking south on the easterly side of Hudson street and, while crossing Christopher street, he felt the street give way under his feet and he fell and was injured. Assuming permission to [567] the defendant to interfere with the street at that point for the purpose of building an electrical subway and that it had let out the work to an independent contractor, its duty of keeping the highway in a reasonably safe condition for travel during the progress of the work remained, notwithstanding the presence of an independent contractor. Schiverea v. Brooklyn Heights R. R. Co., 89 App. Div. 340, 344. Violation of that duty by this defendant, however, the plaintiff must establish and that he has failed to do; for it is uncontradicted that the trench of the defendant at that point was back-filled, rammed, concreted and hand paved and the work completed upwards of ten days prior to the accident to the plaintiff, and that excavations were made around the same place by others the day the work of the defendant was completed. Connection of the defendant therewith and with the injuries to the plaintiff may not be said from the evidence to be established. The judgment should be reversed and a new trial ordered, with costs to appellant to abide the event. Gildersleeve and Amend, JJ., concur. Judgment reversed and new trial ordered, with costs to appellant to abide event.