
    Dora E. Morris, as Administratrix, etc., of Edward Victor Morris, Deceased, Respondent, v. Interurban Street Railway Company, Defendant, Impleaded with The City of New York, Appellant.
    
      Negligence — death of one driving an automobile which rum into a fence erected to guard the New Tork subway excavation and falls into such excavation—for what hole in the street alleged to have caused the automobile to swerve from its course the city of New York is not liable — contributory negligence of the automobile driver.
    
    In an action brought against the city of New York to recover damages resulting from the death of the plaintiff’s intestate, it appeared that while the deceased was operating an automobile along Seventh avenue in the city of New York, in turning from one of the street car tracks laid on that street to the other, he ran into the fence erected at the side of the, latter track for the purpose of guarding the excavation which had been made in the street for the purpose of building the underground railroad. The plaintiff contended that the accident was due to the presence in the pavement between the tracks of a hole not exceeding five or six inches in depth into which the wheels of the automobile slipped, causing it to swerve into the fence.
    It appeared that the surface railroad had laid its tracks in the street under legislative authority and that the Underground railroad was being built under similar authority, and that the city had no control over either enterprise. It also appeared that in the work of constructing the underground railroad the surface of the street was being constantly changed. There was no evidence that any hole or depression existed in the street prior to the time when the subway contractors interfered with it.
    
      Held, that assuming, although the evidence did not justify a finding to that effect, that the accident was due to the presence of the hole in the pavement of the street, the existence of such hole did not, in view of the work which was being done in' the street, render the city chargeable with negligence;
    That it appearing that the intestate was familiar with the locality and with the ' conditions there existing, and tfiat he attempted to pass from one track to the other, when traveling at a rate of speed which rendered it probable that he would be thrown into the excavation unless the machine turned at the proper moment, a finding that he was free from contributory negligence could not I be sustained.
    Appeal by the defendant, The Oity of Yew York, from a judgment of the Supreme Court in favor of the plaintiff and against the defendant, The City of Yew York* entered, in the office of the clerk of the county. of Yew York on the '29th day of January, 1904, upon the. verdict of a jury for $6,000, and also from an order entered in said clerk’s office on the 25th day of January, 1904, denying the said defendant’s motion for a new trial made upon the minutes.
    
      Terence Farley, for the appellant.
    
      Melville J. France, for the respondent.
   Ingraham, J.:

The plaintiff’s intestate was killed by falling into an excavation caused by the building of an underground railroad on Seventh avenue, between Forty-third and Forty-fourth streets, in the city of Yew Y ark. The plaintiff brought this action against the Int'erurban Street Railway- Company, who maintained and operated a street, railroad in Seventh avenue in this locality, and against the city of Yew York, alleging that the defendants had negligently and carelessly permitted ■ and suffered the said Seventh avenue, between Forty-third and Forty-fourth streets, to be improperly and dangerously constructed and to become and remain worn and hollow and out of repair, and in a dangerous and unsafe condition in and about the tracks of the said railroad, and so that there existed at that place between the rails of said tracks a large and dangerous hole which was at or near the junction of a switch track and the north-bound track of the said railway company, of all of which the defendants had due notice. The case was submitted to the jury, who found a verdict against the city and in favor of the Interurban Street Railway Company, and from the judgment entered upon that verdict the city of New York appeals.

The liability of the city of New York is predicated upon its negligence in allowing the existence of the hole between the tracks of the defendant railway company into which the wheels of the automobile slipped and turned, and the insufficient guard about the excavation of the underground railroad. The question as to the liability of. the railroad company is not before us, and to sustain this verdict there must be evidence to show that the city was negligent in the performance of its duty in keeping the streets in the city of New York in repair, and that the accident that caused plaintiff’s intestate’s death was caused by such negligence. There was being constructed at this point under a contract made with the rapid transit commissioners an underground railroad, over which neither the city of New York nor the railroad company had any control. The deceased was employed by an automobile company to operate one of its automobiles and received a salary of twelve dollars per week. A witness, who was also an automobile driver, testified that at the timé of the accident he was sitting upon an automobile in front of a restaurant about three hundred feet from where the accident happened; that he saw an automobile start and come along Seventh avenue until it reached a point about ten or fifteen feet from Forty-third street, and that all at once it took a sudden jerk and swerved and went over into the excavation; that on Seventh avenue at this time there was no room to go on either side of the tracks in consequence of this excavation ; that one had to travel upon the railroad tracks to go from Forty-third ■ to Forty-fourth street; that for at least a month prior to this accident there was a depression in front of the switch of the track of the railroad company from four to six inches deep ; "that just below that depression the street was paved with dirt on the top of planks placed over the bed of the street by the underground railroad construction; that this depression along the rail extended about six inches from the inside of one rail to the other rail between the two tracks ; that the witness saw the automobile swerve in the vicinity of the hole and turn over into the excavation; that the accident happened about.twelve o’clock at night. Another witness testified that there were small holes alongside of the tracks and depressions in the pavements on either side of the rails; that these depressions were about four inches deep; that the lights were out and that it was a dark night, but that one of the defendant’s cars was within fifteen or twenty feet when the automobile fell into the excavation, and that the light from, that car was the only light in this locality. Another witness testified that he left the restaurant with the plaintiff’s intestate; that the plaintiff’s intestate got upon his automobile and started up Seventh avenue; that the witness started to walk up; that plaintiff’s intestate went along on the downtown track a few feet and then crossed over to go on the uptown track,- and as he got- over on the uptown track the witness noticed the automobile went over into the excavation ; that there was a switch and between the switch and the downtown track there was a hole in the road five or six inches deep and a foot wide; that the street was paved with asphalt on one side; that next to the railing where the automobile went over there was a planking a little over a foot wide, and from the planking to the rail it was about two feet further, and it sloped a little; that on the other side it was filled in; that there was no other place to go up Seventh avenue, except on the car tracks; that this hole next to the switch had lasted two weeks before the accident; that he could not testify positively about the depth of the holes, but that they might have been three or four inches deep. Another witness testified that he was on the northwest corner of Eorty-third street and Broadway;. that he saw the automobile leave the restaurant and come up Broadway on the south-bound track ; that it swerved over to the north-bound track and then went into the excavation about the switch somewhere; that the witness was not sure whether the streets were, paved or covered with plank with some dirt on top of them; that there were holes all around there; that the hole along- . side of the switch was about two and a half or three or four inches deep; that this excavation was right close to the tracks. Another witness testified that he was on the box of a hansom cab at Forty-fourth street and Broadway; that he saw an automobile hansom and a car directly behind it, saw the automobile give a birch and go over into the excavation for the subway; .that the surface of the streets between the tracks was full of ruts which varied from four to twelve inches, about three inches deep; that the rut at the switch was from four to twelve inches wide; that the street was full of ruts and was in the same condition two days before the accident; that the witness was about two hundred and fifty to three hundred feet from where the accident happened; that the asphalt was simply broken away from around the rail and around the switch. The plaintiff then rested and the city of Yew York moved to dismiss the complaint as against the city. This motion was denied and counsel for th§ city excepted.

On behalf of the defendant it was proved that at the time of this accident the contractor was making the excavation for the underground railroad underneath the railroad tracks; that the street was held up by a trestle construction of timbers under the tracks; that these timbers had to be shifted around, taken from place to place to get out the rock or earth ; that from the latter part of April up to and including the month of August this street and this railroad track between Forty-third and Forty-fourth streets was on a trestle; that along the side of the street there were two-inch timbers, from eight to twelve inches broad, which were nailed along the track; that the contractor would break out the concrete and asphalt so as to get at the arches and get the concrete in the arches below; that for two or three weeks previous to the accident there were sometimes worn places along the rail. An inspector for the underground road testified that at the time of the accident he was on duty at Seventh avenue, between Forty-third and Forty-fourth streets; that before he got there the asphalt pavement had been removed and plank substituted; that it was necessary to dig some of the asphalt out in order to gét in the concrete for the underground railroad; that the surface of the road was substantially changed undergoing repairs every day; that just where this switch was the asphalt had not been removed. A police officer on that post testified that in this street between Forty-third and Forty-fourth streets the workmen were constantly tearing and ripping up the street between the tracks; that they were shoring up the big girders and blocking up -the track from the ground; that they put planking down, all along the street; that whatever asphalt there was left was mostly in the center of the track, between the two tracks; that the contractors were daily repairing and shoring up underneath these tracks ; that they tore up parts of the pavement around this switch and then they boarded it up; that there were small depressions, with the contractors constantly making repairs and constructing the temporary, roadway..

One of the motormen of the défendant railroad company. testified that he was going north on the north-bound track while the plaintiff’s intestate was going north on the south-bound track;. that the witness stopped his car on the south side of Forty-third street and the automobile turned into the north-bound track about, forty or forty-five feet ahead of his car, just about at the temporary crossing at Forty-third street; that he was going at a fast rate of speed and. tried to get ahead of the car upon the north-bound track; that in. crossing to the north-bound track his front wheel hit the fence and the automobile fell into the excavation; that the front wheel broke the fence and “down it (the automobile) went;” that there was a red lamp on the side of the fence and a light from the drug store; that it was the turning of the automobile upon, the north track that caused it to strike the fence; that the plaintiff’s intestate had his hand on the lever of the machine; that as he turned the machine in crossing to the north-bound track he struck the fence and fell into the excavation.; and this testimony of the motorman was corroborated by two other witnesses who stood at the temporary crossing and saw the automobile crossing from the south to the northbound track and saw the plaintiff’s intestate tugging at the lever, and, as he got upon the north-bound track, strike this fence and tumble into the excavation.

At the end of the whole case counsel for the city of New York made a motion to direct a verdict in favor of the city. That , motion was denied and the defendant excepted.

I think it . clear that the finding that this accident was in any way caused by any negligence of the defendant, the Oity of Hew York, is without- evidence to support it. On Seventh avenue, between Forty-third and Forty-fourth streets, the contractors were excavating for the underground railroad. The evidence is undisputed that the surface of the streets was being constantly changed by the contractors, they substituting planks for the asphalt pavement and supporting the tracks of the railroad to make the necessary excavations, the whole street being excavated except where these railroad tracks were supported to enable the railroad company to operate its cars. /

There is no evidence of any depression or hole in this street of over five or six inches. The railroad company had built its tracks here under legislative authority, and this subway was being excavated by the contractors- under like authority, and over neither of these corporations had the city any control. It would be most unreasonable under these circumstances to hold the city responsible for small depressions in the pavement between these tracks. The evidence, moreover, does not justify a finding that it was in consequence of these holes that this automobile ran into the excavation. The. evidence is substantially undisputed that the plaintiff’s intestate driving this automobile passed a north-bound car at Forty-third street, drove over from the south-bound to the north-bound track to get in front of the car to proceed on his way uptown, and it was in crossing from one track to the other that for some reason the automobile did not turn quickly enough to the north and ran into the fence guarding the excavation. It is quite possible that in some way the wheels of this automobile got on this switch, and for that reason did not turn as quickly as the plaintiff’s intestate expected; but assuming that the jury could find that this switch, with .the slight depression upon one side of it had something to do with the refusal of the automobile to turn on the north track, of which there is no evidence and which is a mere supposition, I do not think in view of the work that was going on. in this street the city is responsible for its condition, or can be charged with negligence because it did not keep a gang of men at work repairing the street as it was interfered with from day to day by the contractors making this excavation. There was no evidence that there was any hide or depression in the street prior to the time that the contractors interfered with it, and it is perfectly clear that this slight depression, if one existed, would have been entirely harmless but. for the fact that the underground railroad contractors had made this excavation immediately alongside of and under the track. It ivas the excavation that made the street unsafe, not this depression of a few inches alongside of the railroad tracks. These streets through which railroad tracks run cannot be kept perfectly level. The wheels of passing vehicles necessarily cause slight depressions alongside of the tracks and switches, .and there is nothing in such slight inequalities of the surface to make the streets unsafe. That this street was unsafe by reason of the excavation may be conceded, but for that the city of Hew York was not responsible. Hor do I think the evidence sufficient to justify a finding that the plaintiff’s intestate was free from contributory negligence. He was apparently familiar' with this locality and the conditions that existed. It was certainly not a safe place for one of these automobiles to run at a high rate of speed from one track to the other, depending upon being able to quickly turn to avoid being thrown into the excavation. The accident resulted from the effort of the plaintiff’s intestate to pass the car and get in front of it to pursue his way north at a rate of speed which rendered it probable that he would be thrown into the excavation, unless the machine turned just as he expected it would, and it was this method of using the machine that caused the accident.

My conclusion is that there was no evidence to sustain a finding that the city of Hew, York was guilty of negligence, or that the plaintiff was free from negligence.

It follows that the judgment and order appealed from must be reversed and a new trial ordered, with costs to the appellant to abide the event. ’ ‘

Van Brunt, P. J., O’Brien, McLaughlin and. Hatch, JJ., concurred.

Judgment'and order reversed, new trial ordered, costs to appellant to abide event.  