
    Michael Hughes, Resp’t, v. The Orange County Milk Association, Impl’d, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed May 12, 1890.)
    
    1. Negligence — Liability of lessees of premises for injuries to PASSERS-BY.
    Defendant was the lessee of premises in New York as a stable and had a yearly contract with one M. to remove the manure, which he took from a pit in the sidewalk. Plaintiff was injured by falling into the pit while it was open for the removal of the manure. Held, that the company was bound to see that the sidewalk was safe while the hole was open and was liable for the injury.
    2. Same—Damages.
    Plaintiff was earning $3.50 a day before the accident. In consequence of the injury he lost his employment, is greatly impaired in health and his physician fixes eight years as his limit of life. Held, that a verdict of $4,680 was not excessive.
    Appeal from judgment in favor of plaintiff, entered upon the verdict of a jury.
    Action for injuries alleged to have been caused by defendant’s negligence.
    The jury rendered a verdict for $4,680.
    
      Richard L. Sweezey, for app’lt; Charles J. Patterson, for resp’t.
   Barnard, P. J.

The defendant, the Orange County Milk Association, occupied premises in Hew York city as' a stable. The defendant, McGirr, was under a yearly contract with the association to remove the manure therefrom. There was a pit under the sidewalk of the street and the manure was taken from this pit and carried away.

The covering over the mouth of the pit was necessarily removed while the manure was being taken out. The hole was of considerable size, being three or four and one-half feet by three feet, the longer side being parallel with the street. The hole was seven br eight feet deep. On the morning of the 29th of December, 1887, the plaintiff was passing along this sidewalk. There was a strong wind blowing in his face and it was quite dark, being about half-past six o’clock. It was very cold. The sidewalk was very narrow, sufficient for only two men to walk abreast. The hole is some three feet from the curb-stone. The smoke from the manure was dense and the wind blew it in the face of the plaintiff. The plaintiff saw the smoke but did not know it came from an open hole, as there was manure outside in the street.

The plaintiff fell into the hole and fell clear to the bottom of the pit and was injured. Assuming a cause of action, does it exist against the Orange County Milk Association under these facts ? The association were the lessees and in possession of the premises and had entire control of the use and mode of use of them. The pit was not of itself a nuisance, but became so when it was left unguarded. The cases cited to show that a landlord who has hired premises with a coal .hole under the sidewalk, excavated by permission of the city and well made, is not responsible for the neglect of a tenant who has entire possession have no application to this case.

Wolf v. Kilpatrick, 101 N. Y., 146, was a case where a stranger wrongfully broke the stone supporting the covering of the hole. The case of Jennings v. Van Schaick, 108 N. Y., 530; 13 N. Y. State Rep., 686, was a case where a house was rented in flats. A janitor lived in the basement. There was a coal hole under the sidewalk built by legal permission. The owner hired the janitor. He left the coal hole open, and the court of appeals held the owner liable. This case is really much stronger against the defendant company, for it had the premises and hired the man to remove the manure. This man was not a tenant, but a servant of the company.

The company was bound to see to it that the sidewalk was made safe while the hole was open. Clifford v. Dam, 81 N. Y., 52. If this is the correct view, the question of the accuracy of the rulings in respect to the admission of the Hew York city ordinances as to pits under sidewalks becomes immaterial. The ordinances merely provide for the safety of the open hole, and the defendants were bound to see to that without them. If the evidence in support of the extent of the injury was credited by the jury, the verdict is fully supported. The plaintiff was a strong man before the accident, and was earning $3.50 a day as a journeyman cooper. In consequence of his injury his flesh has wasted away. He has no strength to go up stairs without the aid of the banister. He cannot even walk the street for over a few minutes. He has been “ laid off ” from his employment because he cannot do the work, and his condition is growing constantly, but slowly, worse. He has trouble with his breathing, and his heart action is affected. The physician who attends him fixes eight years as his limit of life. It would be impossible for an appellate court to weaken this testimony, even if the rule in respect to appeals from verdicts on questions of fact permitted á review.

The jury on questions of fact are only to be subject to review in extreme cases. This is not such a case, and the judgment should, therefore, be affirmed, with costs.

Dykman and Pratt, JJ., concur.  