
    DOYLE against MULREN.
    
      New York Superior Court; General Term,
    
    
      June, 1869.
    Cause of Action.—Negligence Respecting Excavation.—Variance of Proof.—Recovery for Cause not Alleged.
    The plaintiff in this action alleged in his complaint, that the defendant caused excavations to be made on a lot and the sidewalk in front -.thereof, in the city of New York, and negligently left the excavation ■without guards, whereby the plaintiff, lawfully passing by, fell and was ■injured. On the trial it was proved that the defendant was the contractor for building an edifice at the place in question, but did not make the excavation, nor occupy or use any part of the excavation, but that .he had “put up a pile of bricks in the street, the effect of which was to .darken the way, and that in the darkness plaintiff fell into the excavation ; and the judge charged the jury that they were to determine .whether the defendant occupied or used the excavation, and if he did, whether he neglected to put up guards and lights.—Held, that a gen- . eral motion to dismiss the complaint at the conclusion of this evidence, ■was not sufficient to enable the defendant to raise, upon appeal, the ] ■ objection that the proof; and a verdict for the plaintiff thereon, were ■not within the scope of, or sustained by the pleadings.
    Upon.the facts proved in this case, the liability of the defendant did not depend upon his occupancy or possession of the excavation. .
    Appeal from a judgment.
    This action was brought by Bridget Doyle against .Michael Mulren, to recover damages for injuries sustained by .plaintiff from falling into an excavation.
    
      The complaint, omitting such portions as are not necessary for the decision of the cause, was as follows :
    “Bridget Doyle, the plaintiff in this action, respectfully shows to this honorable court, that on or about the second day of November, 1867, at the city of New York, Michael Mulren, the defendant, had caused certain excavations to be made on' the lot and sidewalk fronting the same, situated on the west side of James-street, about seventy feet south from the corner formed by the . intersection of said street and New Bowery, and known as No. 27 James-street, to the best knowledge, information, and belief of the plaintiff.
    “That said excavations were so made on the said lot and sidewalk fronting on the same, to the depth of eight to ten feet or thereabouts.
    “ And this plaintiff further shows that the said excavations were at the time aforesaid, left in a negligent and careless condition, in this, that they were left without sufficient guards, or any guards for proper protection of pedestrains on the said sidewalk and street, and that the said negligent and careless condition was and remained a continued danger to passers by.
    “That at or about eight o’clock, P. M., of the second day of November, 1867, while this plaintiff was passing along the said sidewalk as she lawfully might, intending to go from Chatham-square to No. 65 James-street, she did without any negligence or carelessness on her part, fall into the said excavation so made in the said lot and sidewalk, so being negligently and carelessly unguarded and unprotected as aforesaid.
    “ That by reason of the premises the said plaintiff has sustained damages, as she is advised and believes, in the sum of one thousand dollars.
    “Wherefore she demands judgment against the said defendant for her damages in the premises, in the sum of one thousand dollars.”
    On the trial the following matters appeared in the evidence : A brick house stands on the corner of New Bowery and James-st. ; and, opposite to a portion of this house, and a portion of the excavation, there were a large quantity of brick piled up, resting partly on the sidewalk, and partly on the street, leaving a space, ’ between the pile and the house, and between the pile and the excavation, of about two feet. This pile extended from some point opposite the excavation a distance of twenty-five or thirty feet, to a point distant ten or twelve feet south of said corner. A person, passing along James-street in a southerly direction first encounters this house and pile of bricks, and passing between them comes immediately to the excavation in question, which was on the lot adjoining this corner house on the south.
    The excavation was made for the purpose of laying the foundation of the James-street school house, to be erected on such adjoining lot, and the evidence was contradictory as to whether it extended into the sidewalk or not.
    The defendant was the contractor to build the school house. By his contract he was to erect the building, ■but not to excavate for the foundation. He, in fact, did not dig the excavation, or caused it to be dug. That was done by some other person, who, having finished his work, had left the premises. At the time of the accident, defendant had not used or actually occupied any part of this excavation, which laid between his building line and the street, and his building line was four feet inside of the inside line of the sidewalk, nor was it necessary for erecting the building to use or actually occupy that part. He, however, had erected the above mentioned pile of bricks, and the effect of this was to prevent the street lamps on the corner of James-street and Hew Bowery from shedding any light in the narrow passage-way between the pile of bricks and the house, or on the excavation. '
    The only safeguard pretended to have been erected was a large timber, running from the corner house across the sidewalk to the pile of bricks. There was contradictory evidence as to whether that safeguard was there or not. The preponderance of proof was that it was not.
    
      On the evening of November 2, 1867, the plaintiff was walking down James-street from the New Bowery, passed through this narrow passage-way, and suddenly fell into the excavation.
    At the conclusion of the testimony on both sides,' the defendant moved to dismiss the complaint, without specifying any grounds.
    The motion was denied, and an exception taken.
    The judge thereupon charged the jury as follows :
    “ To entitle the plaintiff to recover, gentlemen, you must be satisfied from the evidence, that the defendant was negligent in the performance of some duty which he ought to have done, and that the plaintiff was guilty of no negligence which contributed to the accident. If, in walking along the sidewalk, she exercised the care which a prudent person would have done under the circumstances, and the accident occurred without any fault on her part, she will be entitled to recover, if you find that the defendant was negligent in the performance of some duty which he ought to have performed.
    “ The evidence shows there was a pile of brick, partly covering the sidewalk, leaving a space of two or three feet between the brick and the house, and that there was an excavation of eight or ten feet into which the plaintiff fell. The defendant has given some testimony himself in regard to the matter. You will say from all the evidence whether he occupied or used this excavation. If he did so occupy and use it, without placing around the, excavation a proper guard, or without putting a light there, or taking such precaution as would warn people of the danger, he will be liable in this action for such damages as the plaintiff has sustained,—in case you find there was no negligence on her part.
    “The damages, if you find for the plaintiff, should not be exorbitant; they should be within reasmable bounds ; and that is a matter entirely within your discretion.”
    Defendant’s counsel then asked the court to charge, that the defendant was not in'the óccupancy oí possession of this excavation on James-street, and was therefore entitled to a verdict. Denied; and' defendant excepted.
    The jury rendered a verdict for the plaintiff for one hundred and fifty dollars, and judgment was rendered thereon for the sum of three hundred and three' dollars and three cents, on the 24th day of March, 1869, from which the defendant appealed.
    
      A. A. Redfleld, for the appellant.
    I. For all that appears, the excavation of this area on the sidewalk was done without a license from the public authorities, and it was, therefore, a public nuisance. (1.) Therefore the owner of the premises Who caused it to be dug is primarily liable (Congreve v. Smith, 18 N. Y., 79 ; Storrs v. Utica, 17 Id., 107). (2.) And so, also, is the person who actually did the work liable (Creed v. Hartmann, 29 N. Y., 591). (3.) But a third person, who neither caused the excavation to be dug, nor dug ■ it himself, cannot be made responsible for it, unless either as owner, tenant; or in some other way, he conies into the exclusive possession and ¿bsolute control of the premises with the nuisance upon it. The defendant stood in neither of these three relations toward the premises.
    II. The'court charged that the defendant must be found to have been “ negligent in' the performance of some duty.” (1.) Where is the foundation of á’hy obligation on the defendant’s part ? His contract to build up the walls did not require him to protect this excavation (City of Buffalo v. Holloway, 7 N. Y. [3 Seld.], 493 ; Storrs v. Utica, 17 N. Y., 107), (2.) The judge confounded this case with those which turn on the liability of tenants for a nuisance existing on demised premises. Such cases, like Irvin v. Fowler (5 Robt., 482), have no analogy with the case at bar. •
    
      H. Q. Snébly, for the respondent.
   Jones J.

One who, by an erection made by himself in a public highway, renders an excavation made on adjoining property by the owner thereof or his authority, more dangerous to those lawfully using the highway than it otherwise would be, is bound to use proper and reasonable precautions to protect those so using the highway from sustaining injury by falling (without negligence on their part), into the excavation, thus rendered more dangerous.

A violation of this duty by the negligent omission of such precautions, subjects the violator to liability for damages at the suit of one who thereby, without contrib- ( utory negligence, sustains injuries.

The uncontroverted facts in this case show that the defendant, by the erection of the pile of bricks in the street, rendered the excavation more dangerous to those using the street at night than it otherwise would have been.

' The questions, as to whether defendant negligently omitted to put proper and reasonable safeguards about this excavation, as to whether plaintiff was guilty of negligence contributing to the injury, and as to the damages sustained by her, were submitted to the jury, who found in favor of the plaintiff upon sufficient evidence.

I am aware that the defendant’s liability was not placed upon the above ground, either in the complaint or in the charge of the judge, and am also aware of the principle that a recovery should be secundum allegata, as well as probata (Rome Exchange Bank v. Eames, 1 Keyes, 588 ; Wright v. Delafield, 35 N. Y., 266 ; Code, §§ 171, 173).

But the objection, that the cause of action proved, is not the cause of action alleged in the complaint, and that the cause of action alleged in the complaint is unproved in its entire scope and meaning, must be distinctly taken at the trial, in order to be available on appeal.

The objection was not so taken in this case.

The defendant moved to dismiss the complaint without specifying any grounds, and on a denial of the motion an exception was taken. Such a motion is held by the court of appeals to be insufficient to enable the defendant to raise, on appeal, the objection in question (Belknap v. Sealey, 14 N. Y., 144 ; Rosebrooks v. Dinsmore, 5 Abb. Pr. N. S., 59 ; reversing 4 Robt.,672.

The only other exception was to a refusal to charge “ that the defendant was not in the occupancy or possession of the excavation, and was therefore entitled to a verdict.”

As his liability does not depend on his occupancy or possession of the excavation, it would have been error thus to charge.

The exception does not point to the objection, that, although there may be some cause of action proved, yet it is not the one alleged in the complaint, and that the cause of action alleged in the complaint was wholly unproved in its entire scope and meaning, as the ground of the request to charge that defendant was entitled to a verdict. If the objection has been thus presented, non constat, but that the judge might have allowed a juror to be withdrawn, and permitted plaintiff to move at special term to amend her complaint!

The only point raised by this exception" is, whether the proof sustains the ground upon which the judge at the trial placed the defendant’s liability. It is unnecessary, in the view taken by the general term, of the ground of defendant’s liability, to consider that point.

Freedman, J., concurred.

Monell, J., dissented.

Judgment affirmed, with costs.  