
    John F. Reilly, Respondent, v. The Sicilian Asphalt Paving Co., Appellant.
    (Supreme Court, Appellate Term,
    February, 1896.)
    Hegligenee t- Obstructions in street.
    Defendant, which was engaged in repairing the sidewalks of "Central park, left piles of asphalt in the gutter, about forty feet ¡apart, and between them, and about four feet from the gutter, a pile of sand and gravel, The piles of asphalt had lights upon .them, but the-other had no danger signal. Plaintiff, while driving in the park driveway on a dark night, collided with the pile of sand and his carriage was thereby injured. Held, that "the facts justified a finding of negligence on the part of the defendant.
    Appeal from a judgment of the Eighth Judicial District Court in favor of the plaintiff.
    John Mulholland, for respondent. \
    Herbert C. Smyth and (x. Thornton Warren, for appellant.
   Bischoff, J.

The plaintiff sued for arid recovered daraages for injuries to his carriage, occasioned by his driving upon and against a pile of wet sand and gravel, placed by the defendant company in the western driveway of Central park, and maintained during -darkness, without any signal of danger, in that highway.

No questions other than those touching the negligence of the 'defendant and the contributory negligence' of the plaintiff are brought before us by the appellant.

The facts upon which the judgment is based are that the plaintiff was driving his vehicle, between 8:30 and 9 o’clock in the evening of July 1, 1895, it being at the time quite dark; that the defendant was engaged during the daytime in repairing the sidewalks of the park and had left piles of asphalt in the gutters ■of the roadway, at the locality of the accident, with a light upon -each pila The bank of sand and gravel, which caused the damage, had been deposited by the defendant midway between two ¡piles of asphalt, each being twenty feet, respectively, from such bank, but the latter was about, four feet from the gutter, and thus nearer the middle of the road than were the asphalt piles.

This sand and gravel mound was, in appearance, like the bed -of the road, and the plaintiff, proceeding in a line parallel with the lighted piles, drove upon it without having any warning of his danger. . . .

' ' We-fail'to find1 any reason for this appeal upon the facts, since ’the justice below could most properly find from the evidence that the defendant was -negligent in its manner of maintaining the locality, thus rendered dangerous by the work in progress, and ’that the plaintiff used due care under the circumstances.

There is no reason why the plaintiff’s testimony in this case should not "have been believed by the justice; and that testimony «quite fairly shows an absence of any coritributory negligence.

Judgment affirmed, with costs. '

■ McAlDám, J., concurs.

.Judgment affirmed, with costs.  