
    Margaret Campion, Appellant, v. Louis P. Rollwagen Respondent.
    
      Negligence — stepping into a coal hole in a sidewalk — evidence that coal was being put into the hole at the time of the accident — charge as to the plaintiff’s duty to exercise care—a recovery cannot be based on the existence of a nuisance unless it be alleged.
    
    In. an action brought to recover damages for personal injuries, sustained by the plaintiff in consequence of stepping into a coal hole upon a sidewalk in front of. premises owned by the defendant, the complaint alleged that the cover of the coal' hole was so insecurely and negligently placed that it turned as the plaintiff stepped upon it, throwing her violently down, but contained no suggestion that the coal hole was Unlawfully maintained or constituted a nuisance, proceeding entirely upon the theory that the defendant was guilty of negligence in failing to keep the hole properly covered, and the case was tried, and submitted to the jury, upon the theory that the plaintiff could recover only if the defendant was guilty of negligence. The defendant offered evidence tending to show that, at the time of the accident, persons were engaged in putting coal into the building under a contract with the defendant.
    
      
      Held, that such evidence was competent, not because the defendant could free himself from his duty to protect the hole in the sidewalk by delegating that duty to another, but for the purpose of showing the situation of affairs at the time of the accident as bearing upon the question of the plaintiff’s, contributory negligence;
    That the court might properly charge the jury that the plaintiff was bound to take such notice as "a reasonably prudent woman would have taken as to what was.before her on the street; and that a request made by the plaintiff to charge that an opening in the sidewalk in. front of premises in the city of New York for the purpose of receiving coal was a nuisance, and that the owner of • the premises was chargeable with any injury occasioned by his wrongful act in maintaining it, was properly refused in view of the absence of any allegation in the complaint that the coal hole constituted a nuisance. ■
    Appeal by the plaintiff, Margaret Campion, from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 19th day of January, 1899, denying her motion to set aside the verdict of a jury and for a new trial made upon the minutes.
    
      George H. Corey, for the appellant.
    
      George F. Langbein, for the respondent.
   Rumsey, J.:

The action is brought to recover damages sustained by the plaintiff who stepped into a. coal hole in front of a building owned by the defendant and received serious injuries. The allegations of the complaint were, substantially, that the defendant was the owner of certain premises on the corner of Lexington avenue and. Eighty-fourth street in the city of New York ; that he had maintained in the cellar of the premises a place for the reception and storage of coal, and that said place was under or adjacent to the sidewalk, on Lexington avenue ; that'the defendant had kept two certain openings or excavations in the sidewalk on Lexington avenue, which were used by him or his servants for the purpose of receiving coal on the premises, and that said openings were provided with covers made of iron, which were used by the defendant in closing and covering the openings in the sidewalk. The plaintiff claims that on the 5th of February, 1897, in the forenoon, while she was walking upon the sidewalk on Lexington avenue in front of the defendant’s premises, she stepped Upon the cover of one of these openings, which she says had been “ so insecurely, carelessly and negligently fastened or placed, over said opening that when this plaintiff stepped upon it, as aforesaid, it turned over, and this plaintiff was thereby violently thrown down and partially into the said opening,” by reason whereof she sustained serious injuries. The complaint further alleged that the injuries aforesaid were occasioned solely by and as a result of the negligence and carelessness of the defendant, his agents, servants and employees, and that said injuries occurred without any fault, omission, negligence or wrongdoing whatsoever on the part of this plaintiff.” The complaint contains no suggestion that the hole in the" sidewalk was maintained by the defendant wrongfully or unlawfully, or under such circumstances as to constitute; a nuisance, but it proceeds solely upon the theory that the defendant was guilty of negligence in failing to keep the hole properly covered, and it seeks damages only for such negligence. The case was tried upon that theory, and it was submitted to the jury, without any objection on the part of the plaintiff, upon the theory that the plaintiff could only recover in case it appeared that the defendant was guilty of negligence. (Matthews v. De Groff, 13 App. Div. 356; Dickinson v. The Mayor, 92 N. Y. 584.) That being so, it is quite clear that the appeal is to be considered as though the action was one for negligence, and not upon the theory that the action was brought against the defendant for maintaining a nuisance on the sidewalk. To recover in such an action, the plaintiff was bound to show not only that the defendant was guilty of negligence, but that she herself was free from it, and the jury were so instructed. They might very well have found, in view of the instructions given them by the court, that, although the defendant was guilty of negligence, the plaintiff herself was guilty of contributory negligence, and if that be so, she could not recover. These questions were submitted to the jury by the court. There was evidence to warrant their submission, and as it does not appear that the case contains all the evidence given upon the trial, it must be assumed that if all the evidence had been printed in the case, there would have been sufficient to warrant the verdict which the jury found. The only questions that can be examined here, therefore, arise upon the exceptions taken upon the trial.

There are certain exceptions taken to the ruling of the court as to evidence offered by. the plaintiff upon the question of damages, but these questions need not be considered. The jury found for the defendant, and, of course, that being the case, they never could have reached the question of damages, because they could not have found for the defendant, unless they came to the conclusion either that the defendant was not guilty of negligence, or the plaintiff was guilty of contributory negligence. The question of damages, therefore, did not come to be a factor in the consideration of the jury, and the rulings upon that point are of no importance.

The defendant gave testimony tending to show that- at the time when this accident occurred persons were engaged in putting coal into the building through this opening, upon a contract which he had made with them for that purpose. It was objected by the plaintiff that all such evidence was incompetent and immaterial because the defendant could not free himself from his duty to protect the hole in the sidewalk by delegating that work to any other person. This was undoubtedly true, and the evidence was not competent for the purpose for which it was offered. But it was competent for the defendant to show the situation of affairs at the-time the plaintiff stepped into the coal hole, and to that end he was entitled to give-evidence to the effect that persons were engaged at that time in putting coal into the coal hole, by way of showing the condition of the hole and the surroundings, because these things bore upon..the. question of the contributory negligence of the plaintiff. The evidence, therefore, was competent for that purpose, and, although it went further than was strictly competent, it is clear that, no injury was done to the plaintiff because the jury were told by the court that if the injury happened through the negligence of the owner, or of any person employed by him, in leaving the sidewalk unguarded and unprotected, he was liable-for the injury, and that the evidence which was given- on behalf of the plaintiff, to the effect that the coal hole was covered by an iron disk; that the plaintiff, in passing, stepped upon the disk; and that she was precipitated into the hole, was sufficient to show that the hole was not properly and sufficiently guarded and protected, and that, if that was the fact, the defendant was liable for the plaintiff’s injury. . The court, further charged that if the plaintiff was precipitated into the hole, without fault or negligence on her .part, the defendant was liable for ,the damages which she suffered. This, charge thoroughly eliminated from the case any suggestion that the act of an independent contractor, in leaving that hole open, could have relieved the defendant from his liability and protected the plaintiff from any injury by reason of the evidence that the contractors, with the defendant, were engaged in putting coal into the hole at the time the injury occurred.

The court charged the jury that the plaintiff was bound, in making out her case, to show that she acted as a reasonable and prudent woman would in walking along the sidewalk, and that if the jury found that by the use of ordinary care, as she was walking along the sidewalk, she should have observed the condition of the sidewalk, or the condition of the coal hole or the cover, or that it was dangerous for her to do as she did, or if she observed them and did not take the care which a reasonably prudent woman would take, she was guilty of contributory negligence in stepping or walking upon the coal-hole cover. To so much of the charge as told the jury that “ plaintiff was bound to take notice of what was before her on the street,” the plaintiff excepted. The court amended the charge by saying that the plaintiff. was bound to take such notice as a reasonable and prudent woman would have done of what was before her on the street. To the charge thus amended there was no possible objection.

The plaintiff also excepted to that portion of the charge of the court to the effect that there was no question of nuisance in the case, and requested the court to charge that an opening in the sidewalk in front of premises in the city of New York for the purpose of receiving coal was a nuisance, and that the owner of the premises was chargeable with any injury occasioned by his wrongful act in maintaining such a nuisance. This the court refused, and we think properly. The defendant was sued only for his negligence. There had been no suggestion in the case, up to that time, that the opening in the sidewalk was improperly maintained or that it was a nuisance. This one had been there over four and a half years, and from that fact the jury might have inferred that it was constructed lawfully. (Babbage v. Powers, 130 N. Y. 281.) Such openings are common and permits are given for the making and maintenance of them; and, if it had been suggested in the complaint or upon the trial that the opening was unauthorized and, therefore, that it was a nuisance, it is more than probable that the defendant would have been able to produce his permit and show that he was duly authorized to maintain these openings. As he was not called upon to do so, either by allegation or proof, the plaintiff was not entitled to proceed against him for the maintenance of a nuisance, but could recover, if at all, only upon the theory of her complaint that the defendant was negligent in not properly protecting the coal hole.

For these reasons there was no error upon the trial, and the order must be affirmed.

Van Brunt, P. J., Barrett and Ingraham, JJ., concurred; Patterson, J., concurred in result.

Order affirmed, with costs.  