
    Anna Whalen, Resp’t, v. Citizens’ Gas Light Company, App’lt.
    
      {Brooklyn City Court, General Term,
    
    
      Filed November 26, 1894.)
    
    1. Negligence—Duty oe one disturbing sidewalk.
    The employes of a corporation, which has a right to make an excavation in a sidewalk, are hound to he careful and prudent in the performance of the work.
    3. Same—Question for jury.
    The questions as to the contributory negligence of the plaintiff and as to the negligence of the defendant were held, under the evidence of this case, to have been properly submitted to the jury.
    Appeal from a judgment in favor of plaintiff.
    
      Frank Sullivan Smith, for app’lt; Thos. M Pearsall, for resp’t.
   Clement, C. J.

The question whether or not the plaintiff was guilty of contributory negligence was properly submitted to the •jury. The plaintiff was, at the time of her injury, 70 years of age, and while walking on the sidewalk on Court street, in this city, tripped on a flagstone, and was thrown down. The employes of the defendant had removed the flagstone, and placed it over another, which formed a part of the sidewalk. The law on this question is well settled by a long line of authorities. Jennings v. Van Schaick, 108 N. Y. 530; 13 St. Rep. 686; Smith v. Ryan, 29 St. Rep. 672; 8 N. Y. Supp. 853; affirmed, 130 N. Y. 653; 41 St. Rep. 950; Bullock v. City of New York, 99 N. Y. 654; Dale v. City of Syracuse, 71 Hun, 449; 54 St. Rep. 381; Brown v. City of Syracuse, 77 Hun, 411; 60 St. Rep. 16. The appellan.t had the right to excavate where it did, but when the sidewalk was disturbed its employes were bound to be careful and prudent in the performance of the work. The testimony does not show to our satisfaction that there was a necessity for placing the flag over the broken one. The latter was not moved for the reason that it would be difficult to replace, as it was broken in several pieces. The company did the work in a way which would saved expense, even if it did interfere with the use of the street by the aged and infirm. The question of the negligence of the defendant was also, under the authorities, properly submitted to the jury.

We do not think that error can be predicated on 'the exception at folios 140 and 141. Horen had given no testimony as to where the flag was, and, if he had, his testimony that he had been told by his foreman to put it in a particular place would be no evidence that he did put' it in that place. The exception at folio 175 was not well taken, within the authority cited. Wiwirowski v. L. S. & M. S. Ry. Co., 124 N. Y. 420; 36 St. Rep. 405. The first part of the proposition is faulty,1—“ that there is no presumption that the plaintiff exercised care and prudence in regard to her life and limb.” The request should have been that, while there is a presumption that a person will exercise care in regard to life and limb, yet the inference could not be drawn from such presumption that the plaintiff was not guilty of contributory negligence. In the words of Judge Earl: “The presumption that every one will take care of himself from regard to his own life and safety cannot take the place of proof.” Cordell v. N. Y. C. & H. R. R. R. Co., 75 N. Y. 330-332. The sixth request, if. charged, would have misled the.jury. It leaves out of the case the 1 question whether or not a prudent person would have placed the stone, even if it was necessary to put it over the broken flag, without any protection or warning to travelers.

Judgment and order denying new trial affirmed, with costs.  