
    Thomas Monahan, Respondent, v. The Empire City Subway Company, Limited, Appellant.
    (Supreme Court, Appellate Term,
    February, 1907.)
    Negligence — Actions — Evidence — Weight and sufficiency.
    In an action to recover for personal injuries sustained by plaintiff in consequence of a fall occasioned, by the street giving way under his feet, where defendant, who had excavated for an electrical subway, had finished its work in a proper manner more than ten days before plaintiff's accident, after which others had made-excavations around the same place, a judgment against defendant should be reversed.
    Appeal by the defendant from a judgment in favor of the plaintiff, rendered in the Municipal Court of the city of New York, third district, borough of Manhattan.
    Winter & Winter, for appellant.
    G. Washington Smith, for respondent.
   MacLean, J.

The plaintiff testified that, at four o’clock in the morning of December 29, 1905, he was walking south on the easterly side of Hudson street and, while crossing Christopher street, he felt the street give way under his feet and he fell and was injured. Assuming permission to the defendant to interfere with the street at that point for the purpose of building an electrical subway and that it had let out the work to an independent contractor, its duty of keeping the highway in a reasonably safe condition for travel during the progress of the work remained, notwithstanding the presence of an independent contractor. Schiverea v. Brooklyn Heights R. R. Co., 89 App. Div. 340, 344. Violation of that duty by this defendant, however, the plaintiff must establish and that he has failed to do; for it is uncontradicted that the trench of the defendant at that point was back-filled, rammed, concreted and hand paved and the work completed upwards of ten days prior to the accident to the plaintiff, and that excavations were made around the same place by others the day the work of the defendant was completed. Connection of the defendant therewith and with the injuries to the plaintiff may not be said from the evidence to be established. The judgment should be reversed and a new trial ordered, with costs to appellant to abide the event.

Gildersleeve and Amend, JJ., concur.

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