
    BERNARD STEIVERMANN, Appellant, v. WILLIAM C. WHITE, et al., Respondents.
    
      Negligence—excavations in highway, legislative authoi'ity to make, does not excuse negligence—disregard of city ordinance—when evidence of negligence—when action not defeated by negligence of third party —oonbrihutory negligence—when question for jury.
    
    Before Freedman and Russell, JJ.
    
      Decided February 6, 1882.
    
      Appeal from a judgment for costs entered upon a dismissal of the plaintiff’s complaint. The action was for damages for personal injuries, because of the alleged negligence of the defendants, in not putting safeguards around holes which, they had dug in the Ninth avenue.
    The defendants, as contractors with the New York Elevated Railroad Co., were engaged in May, 1879, in digging pits or holes in the Ninth avenue, for the purpose of laying foundations for the columns required for the support of the road then about to be erected. They had dug two holes in the Ninth avenue between Twenty-fourth and Twenty-fifth streets, at the distance of about forty-five feet from each, other. These holes were about ten feet square and ten feet deep. The earth taken from them was thrown toward the westerly side of Ninth avenue, rendering that side of the street impassable, so that the traffic of the street was had on that portion of the Ninth avenue occupied by the surface car tracks and the street to the east of those tracks. The holes came under the westerly rail of the surface track ; inside and outside of that rail, planks were laid down to allow horses to walk over. There was no railing or barriers or guard of any kind about the hole where the accident befel. On the morning of May 28, 1879, at about half-past five o’clock, the plaintiff, who was a grocer, drove down the Ninth avenue on his way to market, with a friend. He drove with his right wheels between the rails of the westerly track of the surface road, and his left wheels between the rail of the westerly track and the rail of the easterly track. He was walking his horse. As he came into the immediate vicinity of the hole, about forty feet above the middle line of Twenty-fourth street, an ice wagon turned from Twenty-fourth ' street into the Ninth avenue, and came up the avenue. Its westerly wheels were between the two tracks, and collided with the left wheels of the plaintiff’s wagon when opposite the hole, pushing the plaintiff’s right wheel into the hole. The plaintiff was thrown out upon the pavement; one arm was broken, and he suffered other injuries not necessary here to state. His friend, riding with him, was thrown forward upon the horse, but escaped without serious injury.
   The court at General Term held :

“ Inasmuch as the defendants failed to comply with a city ordinance requiring them to erect safeguards about holes of the character of those proved in this case, their failure to do so was alone sufficient evidence of their negligence, to demand the submission of this case to the jury, so far as that matter is concerned. • But without the ordinance, the fact that they left such holes without barriers, in a crowded thoroughfare, in constant use, under the circumstances proved in this case, was at least evidence to submit to the jury to say whether or pot the defendants were negligent. That they were authorized to dig the holes by the charter of the elevated road and by a permit from the city authorities, does not effect this question (Sexton v. Zett, 44 N. Y. 430; Clifford v. Dam, 81 Id. 52).

“ The plaintiff had a right to use that street. He was going down as he had a right to do. He was proceeding upon a walk. He was on the lookout for danger from the holes. He had a right to assume that the ice cart would keep its own side and would yield to him his right of the road. If the driver of the ice cart was guilty of negligence, as it seems he was, in keeping too far to the left, his negligence cannot be imputed to the plaintiff. The law will never hold it imprudent in any one to act upon the presumption that another in his conduct will act in accordance with the rights and duties of both (Newson v. N. Y. C. R. R., 29 N. Y. 383 ; Harpell v. Curtis, 1 E. D. Smith, 78 ; Ernst v. H. R. R. R. Co., 35 N. Y. 9). The plaintiff might perhaps have acted with more discretion than he did, in the flurry of the excitement attendant upon an impending danger, but even if that were clearly so, it could not be considered contributory negligence such as would defeat a recovery. The error book presents no evidence showing that the plaintiff either did or omitted to do anything which can, ás a matter of law, be considered contributory negligence. That his acts, some of them, would perhaps have justified a jury in finding contributory negligence, is not enough. These acts were capable of a different construction. It was, therefore, for the jury, and not the court, to determine which view should be adopted (Thurber v. Harlem R. R. Co., 60 N. Y. 326, 330 ; Lyman v. Inhabitants of-, 107 Mass. 339 ; Hill v. Sekonk, 109 Id. 85; Stone v. Hubbardston, 100 Id. 49 ; Keller v. Fond du Lac, 31 Wis. 180).

T. J. & R. F. Tilney, for appellant.

W. C. Traphagen, for respondents.

Opinion by Horace Russell, J. ; Freedman, J., concurred.

Judgment reversed; new trial ordered; costs to appellant to abide event. 
      
       See Irvine v. Wood (51 N. Y. 224 ; 5 Robt. 483; 4 Id. 138), which differs from the case at bar, inasmuch as there was in that case no’ legislative authority for the interference with the highway.
     