
    Joseph G. Myers, Plaintiff, v. The City of New York and The Brooklyn Citizen, Defendants.
    Second Department,
    January 10, 1913.
    Negligence—injury to pedestrian by falling into opening in sidewalk — evidence — custom of defendant to leave trap doors open — contributory negligence — bulletin board maintained by defendant to attract attention — when proper protection of opening or negligent use thereof questions for jury — liability of municipality for allowing opening to exist.
    In an action to recover for personal injuries received by one who fell into an opening in the sidewalk maintained by the publishers of a newspaper to lower material to the cellar by means of a lift, it is error to refuse to allow a police officer who was charged with the duty of observing the • condition of the plabe and reporting to the city, also made a defendant, any negligent use of the opening to testify as to the publisher’s custom of leaving it open when not in use.
    Where such opening was guarded by trap doors which when raised vertically were held in position by crossbars, and the plaintiff, while looking at the defendant’s bulletin board, placed.for the purpose of attracting the attention of pedestrians, fell over a crossbar in the night time, the question of his contributory negligence was for the jury.
    So, tqo, the questions as to whether the opening was properly protected and if so, whether it was left open unnecessarily and negligently, were f or the jury.
    Where the defendant publisher was permitted by the city to maintain such opening the city was bound nevertheless to see that the opening was used properly, and if the guards were insufficient or there was an unnecessary and consequently negligent use of the opening and the city in the exercise of' proper care should have known of it, the city is liable to the plaintiff.
    
      It seems, that if it could be shown that the opening was unlawful the question of the negligence of the city in allowing it to exist would be for the jury, although the assent of the city would be inferred from lapse of time.'
    Motion by the plaintiff, Joseph Gl. Myers, for a new trial upon a case containing exceptions ordered to be heard at the Appellate Division in the first instance upon the dismissal of-the complaint at the close of plaintiff’s case by direction of the court on a trial at the Kings County Trial Term in June, 1912.
    
      John C. Robinson, for the plaintiff.
    
      James D. Bell [P. E. Callahan and Archibald R. Watson with him on the brief], for the defendant The City of New York.
    
      Henry E, Heistad, for the defendant the Brooklyn Citizen.
    
   Thomas, J.:

The plaintiff, walking up Fulton street in the borough of Brooklyn, fell into an opening in the sidewalk, kept for some three or four years by the defendant the Brooklyn Citizen, with the knowledge of the same and without dissent on the part of the city of New York. The opening was in front of the building of the defendant Brooklyn Citizen, and in it was a lift used for carrying to its cellar paper used by such defendant; and for the purpose of closing the opening two doors, each about two feet in width, were used, and, to guard the public when these doors were open, they were raised up vertically, while bars at each end held them in position and tended to guard pedestrians. There is no evidence that the lift was in use at the time of the accident, or that it had been used shortly before the same. A police officer saw it a half hour before in the same condition, but, although it was his duty to observe the condition of the place and make report to the city of negligent use of the place, he was not permitted to testify, erroneously, I think, as to the custom of leaving the place open when not in use. The plaintiff, at about half-past eight or nine o’clock at night, in passing the place was attracted to the bulletin board of such defendant Brooklyn Citizen, and, failing to see the obstruction, walked against it and fell over the guard to the bottom of the cellar. Whether the plaintiff was guilty of contributory negligence in directing his eyes to. the bulletin board, which was placed there for the very purpose of diverting attention of the passers-by, was a question for the jury. Whether the opening was properly protected, and even so, whether it was left open unnecessarily, and if so negligently, were questions of fact for the jury. If the abutting owner was permitted by the city to keep the lift, exercising proper care in doing so, it was the duty of the city nevertheless to use care to see to it that it was not used improperly, and if the guards were insufficient or there were unnecessary and. thereby negligent use of the opening, and the city had or in the exercise of proper care should have known of the same, it would be liable to the plaintiff for culpable failure of duty in respect to such matters. I have not mentioned the matter of nuisance for the reason that the complaint is based upon negligence. Neither defendant affirms that the opening was unlawful. If the facts should show that it was unlawful, then the question of the negligence of the city in allowing the obstruction to exist would also be for the jury, although from the length of time that the opening had been there, the assent of the city could be inferred. These questions should be determined by a jury and not by the court. •

Plaintiff’s exceptions should be sustained and a new trial granted, costs to abide the event.

Jenks, P. J., Carr, Woodward and Rich, JJ., concurred.

Plaintiff’s exceptions sustained and new trial granted, costs to abide the event.  