
    Timothy Heaphy, Appellant, Respondent, v. The United States Wood Preserving Company, Appellant, Impleaded with the Franklin Contracting Company, Respondent, and The City of New York, Defendant.
    First Department,
    March 6, 1914
    Municipal corporation—negligence — injury by falling over rails extending above surface of street — contributory negligence.
    Where, in an action against a city, a contractor and a sub-contractor to recover for personal injuries alleged to have been sustained by falling over a street railroad rail which had been left from six to ten inches above the surface of the street, which was being repaired, the plaintiff testifies that he had frequently crossed the street at the point of the accident and had noticed and known of the condition of the rails for some time, and it appears that the place was well lighted, and that on the night of the accident he did not look for the rail or try to see it, the complaint should be dismissed.
    
      Appeal by the plaintiff, Timothy Heaphy, from a judgment of the Supreme Court in favor of the defendant Franklin Contracting Company, entered in the office of the clerk of the county of New York on the 19th day of May, 1913, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 30th day of May, 1913, denying the plaintiff’s motion for a new trial as to said defendant made upon the minutes.
    Appeal by the defendant The United States Wood Preserving Company from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 5th day of May, 1913, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office denying the defendant’s motion for a new trial made upon the minutes.
    
      John C. Robinson, for the plaintiff.
    
      Theodore H. Lord for the defendant, respondent.
    
      James J. Mahoney, for the defendant, appellant.
   McLaughlin, J.:

The city of New York'entered into a contract with the United States Wood Preserving Company to make certain changes or repairs in Thirty-fourth street, where the same intersects Broadway. The contract contained a provision that the wood preserving company would give its personal attention to the faithful prosecution of the work, would place proper guards and lights to prevent accidents, and would observe the law and all ordinances of the city in relation to obstructing the street, keeping open the passageways, and protecting the same; also that it would not assign the contract without the written consent of the city. The wood preserving company sublet the contract, or some part of it, to the Franklin Contracting Company. Whether or not the city consented does not appear. The contracting company, for upwards of six weeks prior to the 6th of November, 1911, had been engaged in doing the work called for by the contract. The asphalt and pavement in the street had been entirely removed. There is a street surface railway extending along Thirty-fourth street, and at the point where such street intersects Broadway the removal of the asphalt and pavement left the rails from six to ten inches above the earth, and the same were supported by planks or blocks. The plaintiff, about eight o’clock in the evening of the day named, started to cross from the northwest to the southwest comer of Thirty-fourth street, and in doing so tripped and fell over the northerly rail, receiving personal injuries. He brought this action to recover the damages sustained on the ground that the same were due to the negligence of all the defendants. At the trial the jury rendered a verdict for a substantial amount against the wood preserving company, and of no cause of action against the other two defendants. The plaintiff appeals from the judgment entered on the verdict dismissing the complaint as to the Franklin Contracting Company, and the wood preserving company appeals from the judgment against it.

The plaintiff, according to his own testimony, was not entitled to recover against' any of the defendants. He testified that he knew the changes which had been and were being made in the street at the place where the accident occurred; that he had frequently crossed the street at this point and had, previous to the night in question, noticed the rail over which he tripped and fell; that this was the only night he had not seen it; that it was raining and the wind blowing hard at the time and he had an umbrella pulled quite low.

The place was well lighted and had plaintiff exercised any care whatever he could not have helped but see the rail. Planks had been placed from the sidewalk down to the bed of the street, so his attention was called to the condition of the street when he left the sidewalk. After leaving the planks he had to travel on the dirt six or eight feet and that he realized this is evident from his testimony, because he says he went through the mud before he reached the rail. His own testimony best describes the situation. He said: “I was not thinking about the rail on the night of the accident. I did not have the rail in my mind as I walked along there on the night of the accident. I did not look for the rail. I did not try to see it; it never ran in my mind. I had my head down, away down. I know the rail was there, but I could not tell how far away it was from me for I—I did not look for it. I suppose I tried to see. I must have tried to see it, because I would have to step up. I did not think about it at the time. I suppose I tried to see it, but I did not bother about it, sir; it did not come into my head. * * * I knew that the rail had been in the same condition as it was on that night for about a week. * * * When I stepped down from the north side of 34th Street, I first stepped on planking. After that I stepped on dirt or mud. The dirt had been there before the accident maybe a week or six weeks; I do not remember exactly. But during at least a week, and perhaps for six weeks before the accident, whenever I saw that crossing, I saw the dirt and I saw this raised rail and the only time that I did not see it was the night of the accident.”

The plaintiff was not only guilty of contributory negligence, but he failed to establish any negligence on the part of the defendants. The city had a right to change and repair the street, and there is nothing to show that any further precautions could have been taken to prevent an accident of this character. The contractors could not barricade the street. The place was well lighted. It is difficult to imagine what further could he done, unless some one stood on the street to escort each person across, and I take it no one would contend that, under such circumstances, such obligation rested upon the city or its contractors.

The judgment and order appealed from by the plaintiff are affirmed, with costs to the defendant Franklin Contracting Company, and the judgment and order appealed from by the United States Wood Preserving Company are reversed, with costs to said defendant, and the complaint dismissed, with costs.

Ingraham, P. J., Laughlin, Scott and Hotchkiss, JJ., concurred.

Judgment and order appealed from by plaintiff' affirmed, with costs to defendant Franklin Contracting Company, and judgment and order appealed from by the United States Wood Preserving Company reversed, with costs to said defendant, and complaint dismissed, with costs. Order to be settled on notice.  