
    William Roe, Respondent, v. Thomas E. Crimmins, Appellant.
    (City Court of New York—General Term,
    May, 1894.)
    One who makes an excavation in a street which he leaves unguarded is liable to persons who are injured by reason of such neglect.
    The mere presence of a person in a crowd assembled to watch the election returns is not, as matter of law, contributory negligence which will preclude a recovery for injuries sustained by being forced by pressure of the crowd into an unguarded trench in the street.
    Where the judge charges on request that if the plaintiff willfully swore falsely upon any material point the jury might disregard the whole of his testimony, but adds, “or any part thereof,” such addition is not prejudicial, especially where some of his testimony was corroborated.
    Appeal from judgment entered on verdict of jury in favor of plaintiff.
    
      C. C. Nadel and T. 8. Moore, for appellant.
    
      E. J. Nathan and F. L. Wellman, for respondent.
   Ehrlich, Ch. J.

The action was brought by plaintiff to recover damages for personal injuries received November 8, 1892, by falling into a trench which had been • dug by the defendant in Park row, near Frankfort" street, in the city of New York.

At that time the defendant was building the cable for the Third Avenue Baiiroad Company.

November 8, 1892, was presidential election day, and in the evening a large crowd congregated in front of the World building on Park row for the purpose of reading the election returns.

The plaintiff left his home at 178 Henry street shortly before ten o’clock that evening, walked down to the World building and formed one of the number congregated there for the purpose stated. He stood in the middle of the street, about fifty feet from the World building, and had been there about half an hour before the accident occurred. The crowd increased while the plaintiff was standing there. The trench was dug between the easterly side of Park row and the westerly car track, and was six feet deep and about eight feet in width. The crowd, in pushing forward, pushed the plaintiff in the trench. He tried to keep back, but was unable to protect himself.

The trench at this point had no protection whatever for about 100 or 150 feet; but above and below this point it was guarded by a wooden fence.

When he fell into the trench the plaintiff struck his lips and mouth against am iron pipe which lay in the trench, knocked out three upper teeth and all but two under teeth ; his lower lip was hanging on his chin. He was conscious; was able to cross over to Chambers Street Hospital, where he was treated by Dr. Stokes. He remained in the hospital over night, and saw the doctor every day for a month, during which time he was unable to work. His speech has been affected by the injury, and he has a scar on his lip and cannot masticate meat of any kind, but is compelled to eat soft food.

It is settled by a long line of decisions in this state that municipal corporations or persons making excavations in the public street are bound to keep them in a safe condition for use in the usual mode by travelers, and are liable in a civil action for a special injury resulting from neglect to perform this duty.

The defendant was clearly guilty of negligence in leaving the trench unguarded, and the only question is whether the plaintiff, under the circumstances, was guilty of contributory negligence.

It was presidential election night, and the plaintiff, following the custom of all good citizens, was watching the returns received affecting the result of the presidential contest. The purpose was certainly legitimate, if not praiseworthy, and as such congregations have been permitted for so long a time that the memory of man runneth not to the contrary, we cannot hold that the mere presence of the plaintiff among the number took from him any of the rights necessary for the security of life or freedom from bodily harm. The surging crowd did not commit any assault upon the plaintiff, nor did it designedly throw him into the trench; and if it had been guarded as it should have been, he might not have received any injury whatever. It will not do to hold that the plaintiff was necessarily guilty of contributory negligence, for this is a question about which minds might differ, and was, therefore, one for the jury to determine.

The jury by their verdict have found that the plaintiff was not guilty of any negligence contributing to the injury, and their finding on this subject is satisfactorily sustained by the facts and the inferences to be drawn from them. When the facts are capable of different inferences the question must go to the jury for determination, and unless negligence is the inevitable and necessary inference from the fact if, is a matter for the jury. Lee v. Gas Light Co., 98 N. Y. 115; Greany v. R. R. Co., 101 id. 419, 423.

The case seems to have been carefully submitted to the jury, and the only exception to the charge requiring comment is that at folio 134, in which the judge was requested to charge that if the plaintiff willfully swore falsely upon any material point the jury should disregard his entire testimony. The judge charged the request with the modification that they had the right to disregard the whole of the testimony or any part thereof. The so-called modification did not prejudice the defendant,' for the jury were practically told that' they might disregard the entire testimony, and adding “or any part thereof ” did not, in our judgment, detract from the force of the request.

The plaintiff testified to some things about which there was no dispute, and in respect to which he was corroborated; and there was no reason why, in respect to matters not in dispute, the testimony should be disregarded because the plaintiff might in other things have testified falsely.

The jury have found'his testimony true, and it was "hardly a case in which the maxim invoked, without the modification, would have been applicable.

We find no error, and the judgment must be affirmed, with costs.

Van Wyck, J., concurs.

Judgment affirmed, with costs.  