
    Henry P. Griffin, Plaintiff, v. The Interurban Street Railway Co., Defendant.
    (Supreme Court, New York Trial Term,
    February, 1905.)
    Street railway — Subway construction caused slot to be spread — Accident to bicycle rider — Notice —Stipulation — Proof under general denial — Request for direction of verdict.
    Where it is established that in the course of the work done in connection with the construction of a subway beneath the roadbed of a street railway, a trolley slot thereon would at times spread less than an inch for a distance of about two feet, and in an action against the railway company for personal injuries received by riding a bicycle on the slot it conclusively appears from the plaintiff’s case that the place in question was safe up to within a short period prior to the accident, the circumstances are not such as to charge defendant with notice of the condition which caused the accident and no case is made out against it either on the theory of nuisance or negligence.
    A stipulation by defendant admitting- that it maintained the trolly slot, on which the plaintiff was riding when he met with his accident, is not an admission that it was responsible for, or maintained the slot in, the condition in which it was at the time and place of the accident.
    The defendant, under the general denial of its answer, was at liberty to show that it did not cause and was not responsible for the spreading or widening of the slot which was the cause of the accident.
    Where" at the close of a trial each of the parties requests the direction of a verdict in his favor,. they are deemed to have submitted to the court for its determination any question of fact which the evidence may present.
    Motions by plaintiff for a direction of a verdict in his favor, and by defendant for a dismissal of the complaint, on which motions decision was reserved until after assessment of damages by the jury under section 1187 of the Code of Civil Procedure.
    John David Lannon, for plaintiff.
    Henry A. Robinson (Daniel W. Patterson, of counsel), for defendant.
   Cochrane, J.

The plaintiff was riding a bicycle down Broadway in the city of New York on the 10th day of April, 1902. He was riding on a “ slot which was maintained by the defendant as a necessary part of its system in the operation of its cars along the street in question and which consisted of an opening between the rails of the track through which the electric power was transmitted for the purpose of propelling the cars. On arriving at a point between Seventieth and Sixty-ninth streets the front wheel of his bicycle was precipitated into- the aperture or slot on which he was riding and he was thrown to the ground and received injuries.

The width of the slot was generally about seven-eighths of an inch but for about two feet at the place of the accident the width was one and three-fourth inches, and it was this unusual width at the point in question which permitted the wheel of the plaintiff’s bicycle to sink into the aperture thus causing the accident.

At the time and at the place of the accident the rapid transit subway was in process of construction, and it appeared on the trial that the street had been excavated underneath the place of the accident and a substructure had been erected on which the track or road bed of the defendant rested. It was also established that in the work of blasting, excavating and otherwise in connection with the subway construction the aperture in the slot would sometimes open and close at different places and that such changes would sometimes take place instantly.

The plaintiff called as a witness Michael J. Fitzgerald who testified that he had often ridden over the slot in question at the place of the accident; that he could not tell exactly how long prior to the accident, but that it was probably a week and that it might have been only two days.

There is, therefore, no liability on the part of the defendant because of any defect in the original construction of the slot as was the case 'in Brown v. Metropolitan St. R. Co., 60 App. Div. 184. Up to a comparatively short time before the accident plaintiff’s witness Fitzgerald with the same kind of a bicycle as that used by the plaintiff had ridden in safety over the identical place which caused the plaintiff’s accident. Plaintiff did not attempt to show what caused the spreading of the slot and from the evidence introduced by the defendant it is a necessary conclusion that such condition was produced by the work of the subway construction.

On the trial counsel for the plaintiff declined to specify ' whether his theory of the action was nuisance or negligence. I do not think he can recover on either theory. The defendant was not responsible for the condition of the slot which caused the accident. The defendant by stipulation admitted that it maintained the trolley slot on which the plaintiff was riding when he met with his accident. And the uncoiitroverted allegation of the complaint is that “ a necessary part of the said track is an aperture or opening called the slot.” The defendant admitted that it maintained this slot but it did not admit that it was responsible for or maintained the slot in the condition in which it tv as at the time and place of the accident. The fallacy of the plaintiff’s argument consists in assuming that the defendant admitted the existence of the slot in its abnormal and unnatural condition.

The defendant, under the general denial of its answer, was at liberty to show that it did not cause and was not responsible for the spreading or widening of the slot which was the cause of the accident. In other words, the defendant admitted the lawful opening in the street, but denied that it made or continued the unlawful or wrongful opening therein, and the defendant was entitled, under its answer, to prove that it was not responsible for and did not maintain such unlawful opening. Irvine v. Wood, 51 N. Y. 224; Clifford v. Dam, 81 id. 52; Brown v. Metropolitan St. R. Co., 60 App. Div. 184.

It conclusively appearing from the plaintiff’s ease that the place in question was safe up to within a short period prior to the accident, no case was made out against the defendant either on the theory of a nuisance or on the theory of negligence without showing that the defendant had notice of the dangerous condition of the street or was chargeable with notice thereof. In view of the fact that only a short time prior to the accident the plaintiff’s witness with the same kind of a bicycle had passed over the place in safety, and considering the nature of the work which was being performed beneath the defendant’s track and that such work caused frequent and sudden changes in the aperture of the trolley slot it cannot be said that the defendant was chargeable with notice of a slight widening of less than one inch in the aperture of the slot for a distance of only about two feet. Plaintiff riding on the slot during the daytime saw nothing to warn him of danger, and the circumstances in this case are not such as to charge the defendant with notice of the condition which caused the accident.

The parties, by their motions made at the close of the trial, treated the action as involving only questions of law, and are deemed to have submitted to the court for its determination any question of fact which the evidence may present. Dillon v. Cockcroft, 90 N. Y. 649; Guenther v. Amsden, 16 App. Div. 607. If any question of fact exists in this case it should be determined in favor of the defendant.

Complaint dismissed.  