
    Mary Murphy, an Infant, by William Murphy, her Guardian ad Litem, Respondent, v. Louis Perlstein, Appellant.
    
      Negligence—injury from falling into an excavation dug in a city lot near the sidewalk— employment of an independent contractor to do the work — charge as to a girl fourteen years of age being sui juris.
    In an action to recover damages for personal injuries it appeared that the defendant was the owner of a lot abutting upon a public street in the city of New York, and that, for the purpose of erecting a building thereon, he had caused a deep excavation to be made next to the line of the street; that the plaintiff, a girl fourteen years of age, lived on the opposite side of the street and that the nearest route to the school which she attended led by the excavation; that on the day of the accident the plaintiff took this route in returning to school and that when she arrived at the sidewalk, opposite the excavation, she found that it was covered with slush and water, and that immediately adjacent to the excavation was a strip, about a foot wide, which was above the slush and water and was rough with little mounds; that the plaintiff attempted to walk over the same, and in doing so slipped and fell into the excavation which had been left unguarded.
    
      Held, that the questions of the defendant’s negligence and of the plaintiff's contributory negligence were properly submitted to the jury.
    That the fact that the defendant had employed an independent contractor to make the excavation and had given him entire charge and control over the work, did not relieve the defendant from liability for the failure of the contractor to guard the excavation, as the rule relieving an owner of property from liability for the negligent acts of an independent contractor does not apply to a case like the present where it is the character of the work which creates the injury;
    That, as there was evidence that the defendant employed a superintendent upon the work who gave directions concerning the same and also employed a watchman to see that the excavation was properly protected, the jury might find that the personal act of the defendant caused the accident;
    That it was error for the court to refuse to charge that the plaintiff was sui juris and could be charged as such with contributory negligence.
    Appeal by the defendant, Louis Perlstein, 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 17th day of December, 1901, upon the verdict of a jury for $1,250, and also from an order entered in said clerk’s office on the 18th day of December, 1901, denying the defendant’s motion for a new trial made upon the minutes.
    
      Edward W. S. Johnston, for the appellant.
    
      Edward J. Dunjyhy, for the respondent.
   Hatch, J.:

By this action the plaintiff seeks to recover damages for injuries which it is alleged she sustained on account of the negligence of the defendant in causing an excavation to remain open and unguarded immediately adjacent to the sidewalk upon a public street. It appeared from the evidence in the case that the defendant was the owner of certain premises situate at the corner of Oak and Oliver streets in the borough of Manhattan in the city of Hew York, and for the purpose of building thereon had caused to be made a deep excavation next to the line of the street and had left it in an unsafe and unguarded condition, constituting the same dangerous to the traveling public; that without fault or negligence upon the part of the plaintiff, and by reason of the unguarded state of the excavation, she slipped upon the walk, fell into the same and received serious injuries. The plaintiff at the time of the accident was an infant fourteen years of age, was living with her parents on the opposite side of the street from the place of the excavation and on the day in question had been attending school, had come home at noon for lunch and was returning to school when she met with the accident. It appeared that the sidewalk opposite the excavation had been torn up while the building was in process of construction and the ground opposite the same was rough and uneven. Prior to the day in question it had snowed, then thawed and at the time of the accident the walk in front of the premises was covered with slush and water, the depth of which could not be determined by the eye. Immediately adjacent to the excavation was a strip about a foot wide which was above the slush and water and the plaintiff attempted to make passage thereon. It was somewhat rough with little mounds and in passing over it she slipped, and the excavation being unguarded fell therein. The plaintiff could have proceeded upon the sidewalk along the opposite side of the street without danger, but the route which carried her past these premises was the nearest route to the school which was the reason why she went that way. It is not necessary that we set out the evidence in detail, nor is it necessary for the proper disposition of the case so far as the present appeal is concerned. It is sufficient now to say that an obligation rested upon the defendant when he made or caused to be made the excavation in question, to take proper precautions in protecting persons traveling upon the street and to guard the excavation in such manner as to reasonably insure the safety of pedestrians having occasion to make use of the walk. The evidence was sufficient, from which we think the jury were authorized to find that the duty which rested upon the defendant in this regard was not properly performed and, therefore, predicate negligence thereon. ISTor do we think that it was contributory negligence, as matter of law, for the plaintiff to attempt passage along the street. Its dangerous condition was not so apparent as to authorize the court to say that it was negligence for a person to pass over it; on the contrary, the jury were authorized to find that a person exercising reasonable care might pass over this place with safety; consequently the plaintiff could not be charged as matter of law with contributory negligence in making use of this walk under its existing conditions. The questions of negligence and of contributory negligence, therefore, became proper questions to be submitted to the jury for their determination and no error could be predicated thereon.

The defendant claims, however, that he was not responsible for the excavation nor chargeable with the duty of seeing that a proper guard and railing was placed about it. It is well-settled law that an owner of land who makes an excavation thereon adjacent to the highway or so near to it as to make the highway unsafe or dangerous will be liable to a pedestrian who makes use of the highway exercising ordinary care, if he falls into the excavation and is injured. (Beck v. Carter, 68 N. Y. 283.) It is the contention of the defendant, however, that he is relieved from such liability in the present case for the reason that he entered into a contract with another person to make the excavation and fully complete the same, and that at the time when the accident occurred such contractor was prosecuting the work; and had full control of the same; that the defendant had no authority to interfere with the method and manner in which the work was being carried on, and had no control over the same; that such contractor was in all respects a competent and fit person to perform the work ; and that if there was failure to properly guard the excavation it was the act of the independent contractor for which the defendant was not liable.

It is the general rule that the owner of property is not liable for the negligent acts of an independent contractor with whom the owner has contracted for the performance of the work and to whom has been intrusted the method and manner of its performance. (.Neumeister v. Eggers, 29 App. Div. 385 ; Roemer v. Striker, 142 N. Y. 134.) To this rule, however, there is a distinct and well-grounded exception. If the character of the work creates the danger or injury then the owner of the property who made the contract remains liable to persons who are injured by a failure to properly guard or protect the work even though the same in its entirety is intrusted to a competent independent contractor. (Douney v. Low, 22 App. Div. 460 ; Weber v. Buffalo R. Co., 20 id. 292.)

In the present case it was the work itself, i. e., the excavation, which produced the injury. The case, therefore, falls clearly within the exceptions, and the defendant remains liable for any act of negligence of the contractor in failing to properly protect the work. Ho error was, therefore, committed by the court in excluding the contracts which were offered in evidence. In addition to this, in the present case, there was evidence that the defendant had a superintendent upon the work who gave directions concerning the same, and he also employed a watchman to see that the excavation was properly protected. Upon this testimony the counsel for the defendant asked the court to charge the jury that the defendant did place around the cellarway boards on barrels, and had employed a watchman to see that the barrels and boards were kept in their place around the excavation, and he asked the court to charge that if they were removed therefrom after being properly placed in position without the knowledge of the watchman and without the lapse of sufficient time to charge him with such knowledge, that the defendant would not be liable for injuries to any person who slipped and fell into the excavation. It is, therefore, evident that the defendant recognized that he might be made liable for the supervision which he exercised about guarding the excavation. If, therefore, the contract was admissible in evidence and might have relieved the defendant it was still competent upon the testimony for the jury to find that the personal act of the defendant caused the accident. Undoubtedly, under such circumstances, if that was the rule to be applied, the defendant would have become entitled to have the contracts considered; but, as we have already observed, such is not the law applicable to the facts of this case. We, therefore, find no obstacle in sustaining this judgment based upon those considerations.

We think, however, that a fatal error was committed in the charge of the learned trial court in submitting this case to the jury. The plaintiff was fourteen years of age; consequently, as bearing upon the question of contributory negligence, she became entitled to have her acts considered, having reference to her age and the degree of care reasonably expected to be exercised by an infant of her years. It is perfectly evident, however, that she was sui juris and could, therefore, be charged with contributory negligence. (Stone v. Dry Dock, etc., R. R. Co., 115 N. Y. 104; Weiss v. Met. St. Ry. Co., 33 App. Div. 221; affd. on appeal, 165 N. Y. 665.) By virtue of the provisions of sections 17 and 19 of the Penal Code she is presumed to-be capable of committing crime without proof showing her mental capacity. It is, therefore, evident that the court was required to charge the jury, if requested, that she was sui juris and responsible as such for her negligent acts. The court was so requested to charge, but refused, leaving it to the jury to determine whether the plaintiff was competent to be upon the street unattended by some person to guard her steps. The body of the charge made no mention of this subject, but, upon the request of the plaintiff’s counsel, the court did charge that she was only required to exercise the ordinary care expected to be exercised under similar circumstances by a child of her years and knowledge.” Having so charged, the defendant became clearly entitled to have the court charge that she was sui juris and, therefore, negligence could be predicated of her acts measured by such fact. This was refused and the jury were left to speculate upon such subject. We think this constituted error.

It follows, therefore, that the judgment and order should be reversed and a new trial granted, with costs to the appellant to abide the event.

O’Brien, McLaughlin and Laughlin, JJ., concurred.

Ingraham, J. (concurring):

I concur in the reversal of this judgment upon the ground that on the evidence the plaintiff was guilty of contributory negligence in voluntarily placing herself in a position of danger by which she assumed the risk incident to that situation. There is no question but that the plaintiff was sui juris and the defendant was entitled to have the court charge that proposition. She was, therefore, bound to exercise the care of an ordinarily prudent person in walking along the sidewalk, and, if the in jury resulted from a risk knowingly and voluntarily assumed by her, she cannot recover. The defendant was erecting a building upon his premises and had the legal right to excavate a cellar. He was also building a new sidewalk in front of his premises, and to accomplish that he had to remove the old sidewalk. While the premises were in this condition, in broad daylight, with the situation apparent to the plaintiff, instead of crossing on the other side of the street where the sidewalk was in order, she selected this sidewalk in course of construction, and to avoid wetting her feet -walked on a strip about a foot wide which was immediately adjoining the excavation, and in walking over this strip she slipped and fell. It is not claimed that the plaintiff was not entirely familiar with the situation, or that she did not know that the excavation had been made, but she deliberately selected this place of danger in preference to the other sidewalk or the middle of this sidewalk where she would have been safe. To say that an accident under these conditions was the result of the negligence of the defendant seems to me to contradict all of the conceded facts. The accident really happened because the plaintiff voluntarily placed herself in a place of danger which was perfectly apparent to her, and not through any negligence of the defendant.

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