
    Henry Rosenhain, Resp't, v. Thomas P. Galligan et al., App'lts.
    
      (Supreme Court, Appellate Division, First Department,
    
    
      Filed May 1, 1896.)
    
    1. Negligence—Duty.
    Where persons are carrying on business, and, in so doing, occupy the street to a certain extent, with the consent of the city that they might so use it, they are under a legal obligation and duty to the public traveling along the street to exercise care, proportionate to the danger to he apprehended, to protect the public from the injury resulting from the use of their apl pliances in carrying on such business.
    
      %. Same.
    Where such persons are engaged in removing rock from land adjoining a street by means of a derrick, they are under obligation, and it is their duty, to exercise care as to the use made of the d< trick and to refrain from attempting to lift and remove at one time too large a weight of stone
    3. Same.
    The question whether the failure to have a shed or cover over the sidewalk and under the guys extending over it was negligence, is one for the jury.
    
      Appeal from a judgment, entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes.
    Hamilton Wallis, for app’lts; John M. Bowers and Robert L. Luce, for resp't.
   WILLIAMS, J.

No question seems tobe made by appellants as to the question of contributory negligence. There was sufficient evidence for the. jury, and the case was properly submitted, as to the absence of contributory negligence.

The real questions in controversy relate to the alleged negligence of the defendants. It is claimed there was not sufficient evidence in the case to authorize the jury to find the defendants guilty of negligence which caused the injuries to the plaintiff, and that there were errors committed by the court in submitting this question to the jury. It seems to us that there was evidence upon which the jury might find the defendants guilty of negligence upon all or any of the questions suggested by the court. It will be remembered that the plaintiff, when he was injured, was walking along a public street, in a place where he had a legal right to be, and where the defendants had no right to subject him to any unnecessary danger. Assuming that they were carrying on their business, and in doing so were occupying the street to a certain extent, with the consent of the city that they might so use the street, still they were under a legal obligation and duty to the public traveling along the street to exercise care, proportionate to the danger to be apprehended, to protect the public from injury resulting from the use of their appliances in carrying on such business. They stretched some of the heavy wire cables or guys over the sidewalk, and fastened others in the rocks about the lots. These supported and held in place the heavy derrick used in raising and removing from the excavation tons of rock at a time. These appliances were certainly danderous to travelers along the sidewalk where this accident occurred. Many people traveled over that street. The giving way of the cables or guys fastened in the street, or of those fastened in the lots, was liable and likely to injure people who chanced at the time to be passing along this sidewalk. 'Under such circumstances the defendants were under obligations, and it was their duty towards the traveling public, to exercise care in securing the various cables or guys, so that, in the use of the derrick, they would not give way ; and the court submitted the question to the jury whether sufficient care had been exercised in this respect to relieve the defendants from the charge of negligence. One of the cables or guys was fastened in the rock, or ledge of rock, at the northerly side of the eveavation, and this cable or guy palled out at the time of the accident, bringing with it a portion of the rock. Whether sufficient care was exercised originally in selecting the place to fasten this cable, or whether it had been sufficiently examined prior to the time of the accident, so as to discover any defects which may have exhibited themselves prior to the time of the accident, the derrick having been constantly in use for two and one half months, we think, was a proper question for the jury, and was properly submitted to ■them. It was not necessary that direct evidence should be given of such defects. They did exist at the time of the accident, or the cable or guy would not have pulled out, bringing portions of the rock with it, as it did do. The jury had the right to make legitimate inference from this fact, and other facts and circumstances disclosed by the evidence; and we cannot say their verdict, if based upon this ground of negligence, was not supported by the evidence in the case.

Then, again, the defendants were under obligation, and it was their duty, to exercise care as to the use made of the derrick, to refrain from attempting to lift and remove at one time too large a weight of stone; and it was a proper subject of inquiry whether, on the occasion of the accident, there was not negligence in this respect on the part of the defendants. They attempted to raise a weight of seventy-five tons, but could not do it. They could only have raised about ten tons. They did not intend to raise so large a weight. The chain got caught in a pile of rock unintentionally. The force applied was so great as to bend the derrick, and, when the force was withdrawn finally, the northern cable or guy pulled out, and, as a result, the derr-lc fell, and one of the cables or guys stretched over the sidewalk came down upon the plaintiff and caused his injuries. Whether there was negligence in applying and continuing to apply the power to the derrick, when it was, or should have been, discovered that the chain was attached to so large a weight; whether the defendants were not wanting in proper care in the use of the derrick, and the power applied thereto, at the time of the accident,—was a proper subject of inquiry, and was properly submitted to the jury as a ground of negligence, in view of the evidence in the case ; and, if the verdict of the jury was based upon negligence in this respect, we cannot say it was unsupported by the evidence.

The third ground of negligence submitted to the jury was the failure to have a cover or shed, over the northerly sidewalk, and below the cables or guys which were fastened in the street. The jury was permitted to determine whether the defendants did not, in this respect, neglect to perform a duty which they owed to the public, and to the plaintiff, traveling along this sidewalk. We think this was a proper question for the jury, and was properly submitted. The evidence shows the street in question was traveled by a large number of persons, and that there were many persons in the street at the time of the accident. While the court would not have been justified in charging the jury, as a matter of law, that it was the duty of the defendants to have a cover or died over the walk, it certainly could not be said, as a matter of law, that it was not their duty to have a cover there. It was fairly a question of fact, for the jury to determine, whether, under the circumstances disclosed in this case, that duty existed. It is within our observation that such covers or sheds are frequently built in the city of Hew York for the protection of the public passing along the sidewalks, where buildings are being constructed or improvements are being made. They certainly are necessary in some cases, and a failure to have them would clearly be negligence. In other cases, they would not be necessary, and a failure to have them would not be negligence. In this case, we think it was a question for the jury, and was properly left to them to be determined. We conclude that the question of the defendants’ alleged negligence was properly submitted to the jury, and their determination should not be disturbed by the court.

We have examined the exceptions taken to the charge and requests, and find none of sufficient merit to call for special mention here, or for a reversal of the judgment. The trial court carefully protected the rights of the defendants. The verdict of the jury was not large, and we think the judgment and order appealed from should be affirmed, with costs.

All concur.  