
    Philip A. Daub, Resp't, v. The Yonkers, Railroad Co., App'lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed May 8, 1893.)
    
    1. Negligence—Street Railroads.
    Plaintiff, while a passenger on one of defendant’s cars, was injured by the car running into a trench which defendant had made between and outside the rails to the depth of six inches. The driver, notwithstanding the warning of those at work, drove into the.trench at a trot, and the front wheels dropped into the trench. Held, sufficient to show negligence on the part of defendant.
    
      2. Same.
    When a driver trots in clear daylight into a trench against warning, a court is justified in telling a jury that, if proven, it is negligence.
    Appeal from judgment in favor of plaintiff, entered upon verdict.
    Action to recover damages for injuries received by plaintiff while a passenger upon a street car of defendant.
    
      John F. Brennan, for app’lt; Ellis & Harrigan, for resp’t.
   Barnard, P. J.

The facts from which the negligence of the defendant could be found were abundantly proven. The employees of the defendant had made an excavation between the rails and outside of them to a depth of six inches. The defendant’s driver, against the warning of those at work upon the trench, drove upon a trot into this trench, and the front wheels of the car, in which the plaintiff and other passengers, were seated, •dropped into the trench and injured the plaintiff by throwing him to the other side of the car from the side upon which he was sitting at the time of the accident. There was no question but that the plaintiff was free from negligence. He was a passenger, seated in the car, reading, and was injured without a moment's notice of danger. The digging of a trench so deep as to weaken the track so that it would not hold the car, and the disregard of warning by the defendant’s driver that he must stop his car, is such conclusive proof of the defendant’s negligence that an assessment of damages was all that was left for the jury. There was no error in the charge as to the horses running into the open trench. Running or walking was immaterial, so long as the driver threw his car in the excavation ; but when a driver trots in clear daylight into a trench against warning, a court is justified in telling a jury that, if proven, it is negligence.

The judgment and order denying new trial should be affirmed, with costs. -

Dykman and Pratt, JJ., concur.  