
    Frederick Akers, Respondent, v. The Mayor, etc., of New York, Appellant.
    (New York Common Pleas
    General Term,
    December, 1895.)
    It is the duty of a municipal corporation to maintain its streets in a con- ' dition of reasonable safety for the driving of spirited, as well as. docile animals. ■ ....
    The mere erection of an embankment of earth is not a sufficient guard for an excavation in a street, but railings should be placed around it for the purpose of warning travelers that the road as restricted by that limit alone is safe.
    "Where the work is that of the municipality, notice, of its dangerous character is necessarily attributable to the city.
    Where the negligence of a third party and the defendant are contributory causes leading to a position of sudden danger to the plaintiff, ill-advised action on the part of the latter under the. spur of necessity does not constitute contributory negligence.
    In an. action for injuries to property,., evidence as. -to the price paid for the ' ' .property is admissible as some evidence of the value, i
    Appeal from judgment on verdict and from.an Order denying a motion for a new trial. ■ ,
    
      Theodore Oonnol/y and Terrence Farley, for appellant.
    ■ James P. Niemamn, for respondent. - ' ’ -
   Bisohofí, J.

. This ’action was brought to charge the . defendant corporation with a negligent act in so maintaining an excavation in'the public street as td have caused' an injury. to the. plaintiff’s property, ,the negligence being predicated upon, the absence of proper guards or barricades about the locality.

The facts appear to be that late in the afternoon of. September 15, 1892, the plaintiff was driving his horse along Mott .avenue in this city, proceeding in a southerly direction and .approaching One Hundred and Sixty-first street. The excavation in 'question was located in the latter street, but extended into. the point of intersection with Mott avenue, leaving a space sufficient for the passage of but one vehicle-through the avenue at that place.

As the plaintiff reached this narrow point another carriage-approached rapidly from the south, and, being suddenly confronted with the prospect of a collision, he turned his horse upon the earth embankment thrown up about the excavation, which was not otherwise guarded.

The horse became restive by reason of the shifting of the loose earth under his feet, and gave.a spring which caused his precipitation into the excavation, and the injuries sued for resulted.

The plaintiff was aware of the presence of an excavation somewhere upon the opposite side of the embankment as he approached it, but,- aócording to his testimony, he did not appreciate its proximity.

Error is assigned by the appellant to the ruling of the court submitting the question of negligence to the jury, it being-claimed that there was a sufficient harrier about the excavation in the form of the embankment, but we think -that the contention is without force.

While the restive movement of the horse perhaps brought' about the injury, which would not have resulted had lje remained quiet, yet this was no defense, since it was incumbent upon the defendant to maintain the highway in a condition of reasonable safety for the driving of spirited as well as-docile animals (Hey v. Philadelphia, 22 Am. Rep. 733 ; Kennedy v. Mayor, 73 N. Y. 365), and the jury could reasonably find that the defendant was remiss, considering the nature of the locality, in failing to place railings around the embankment for the purpose, at least, of warning travelers that the-road as restricted by that limit alone was'safe. Had such barriers been maintained there might indeed have been a collision, as anticipated by the plaintiff, hut this action would not have-been brought; liad the plaintiff driven through the barriers a-very different state of facts would also have been presented,, but we find nothing unreasonable in the proposition that ordinary care would have called for something more than the mere-erection of a mound of earth at the point in question upon the defendant’s part.

It is claimed further that there, was a failure of- proof pf notice fo the defendant of the dangerous character of thi's e'xCavation, in the manner maintained, but in" view of the fact, as shown and not contested, that the work in the street was the work of the municipality, such notice was necessarily attributable to it, if indeed the doctrine of notice were at all applicable to a case like the present, where the city has failed to properly guard a locality made inherently dangerous through its act". Wilson v. City of Troy, 135 N. Y. 102.

Nor can it be said that there was contributory negligence attributable to the plaintiff as. matter of law. His action /in turning his horse upon this unfenced mound of earth was' induced through an attempt to avoid a sudden danger, and he was not necessarily to be denied relief .upon that ground.

It is no defense in an action for a negligent injury that the negligence of a third person contributed to cause the injury. of ■ the plaintiff if the ■'negligence of the defendant was an efficient cause (Atkinson v. G. T.Co., 50 Am. Rep. 353; Eaton v. R. R. Co., 87 Ám. Dec. 730; Austin v. N. J. St. Co., 43 N. Y. 75), and where the negligence of a-third party ,and of the defendant are contributory causes .leading-to a position of sudden danger to the plaintiff, the latter’s ill-advised action under the spur of necessity does not amount to negligence upon his part sufficient to defeat a recovery. Dyer v. Erie Ry. Co., 71 N. Y. 228.

' The only remaining point in the case, has- regard to the admissibility of evidence of- the price paid for the property, injured as bearing upon the proof of damage. The question was presented only by exceptions taken to the admission of the testimony, which, as" the court observed, was some evi- , dence of value.” In-stating this proposition the learned trial-judge Was. undoubtedly correct (Hawver v. Bell, 141 N. Y. 143), and if counsel had considered the full proof as- to damage to have been insufficient, a nonsuit upon that ground should have been moved or an appropriate instruction to the jury asked. Case last cited. There is no trace of any such attitude having been assumed at the trial, and the point, if at any time of availability in this case, is now raised too late.

The judgment and order must be affirmed, with costs.

Daly, Ch. J., and Bookstaver, J., concur.

Judgment and order affirmed, with costs.  