Adelman v. Uvalde Asphalt Paving Co.

Weeks, J. Prior to the accident the Empire City Subway Company, under a permit duly issued by the proper authorities of the city of New York, laid electrical conduits in Stanton street along the northerly curb mailing an excavation about two feet wide. This work was finished on May 27, 1916, and the defendant then undertook the asphalting and repaving of the street. Before turning the trench over to defendant [516] the Empire Company laid creosoted wood conduits and filled up the trench. On or about June 2, 1916, the defendant reopened the trench to a depth of about nine inches and put in a concrete base of about six inches and with the dirt taken from the trench filled in the same to the level of the surface of the street or a little above it. On June 9, 1916, the plaintiff, who was crossing Stanton street on the westerly side of Ludlow street, stepped on the dirt covering the trench and fell, receiving the injuries for which recovery is sought in this action. The accident occurred about five o ’clock in the afternoon when it was still light and, although there was evidence that it had been raining that day and was still raining a little, one of the plaintiff’s witnesses testified that “ there wasn’t any hole, it was covered up with dirt. ’ ’ The only description as to how the accident happened was given by the plaintiff who testified as follows: “Q. You say you stepped on something. What did you step on? A. Before I stepped it looked to me as if it was all right. Then I stepped and my foot sunk in and I fell down. Q. Did you look at all before you stepped? A. It looked to be all right on the top. When I stepped with my foot, I sunk in. Q. WTiat did you sink in? A. The dirt and pebbles. Q. How much dirt was there? A. It was laying around, dirt and pebbles. * # * Q. What foot did you step on the dirt with? A. The left foot. Q. And then what happened to you? A. Then I fell down on the left side. Q. What happened to your foot? A. I sunk down with my foot. Q. Did the dirt sink down under your foot? A. I sunk down on the dirt with my foot. Q. Before you came to this dirt did you notice it? A. I noticed that there was dirt around there but the place where I stepped looked to be all right.” [517] There is no evidence to support the theory upon which the respondent seeks to support the judgment herein, “ that there was a trap there, no guard, light or other warning sign to apprise any one that the dirt was so loosely and carelessly thrown into the trench that it acted like a quicksand. ’ ’ According to the testimony presented hy the plaintiff there were only about three inches of dirt, it was still daylight and the plaintiff saw that the dirt was there before she stepped in it. The case of Johnson v. Friel, 50 N. Y. 679, upon which plaintiff relied in the court below, has no application, as in that case a hole had been washed out several days before the accident, which hole was two feet deep and six or seven feet long, and no measures had been taken to fill it in or to protect the public, and the accident occurred at nine o’clock in the evening. In the instant case the accident occurred in the daytime. As stated in Fitzgerald v. Degnon Contracting Co., 126 App. Div. 363: “ The condition of the street was obvious, and it was for her to take care (Whalen v. Citizens Gas Light Co., 151 N. Y. 70; Walsh v. Central N. Y. Tel. & Tel. Co., 176 id. 163). The defendants were engaged in a necessary and lawful work and were guilty of no negligence.” The motion to dismiss at the close of the plaintiff’s case should have been granted. The judgment should be reversed, with thirty dollars costs, and the complaint dismissed, with costs in the court below. Guy, J., concurs.