
    Joseph Powers, Jr., an Infant under the Age of Fourteen Years, by his Guardian ad Litem, Joseph Powers, Respondent, v. Daniel J. Creem, Appellant.
    
      Negligence — injury to a boy who falls while walking over a plank bracing a sewer trench.
    
    A contractor engaged in the construction of a sewer in a city street put a plank about ten inches in width (used to keep in position long timbers laid along the top of the interior of the ditch on both sides thereof) across the trench from side to side in about the same place that a crosswalk had theretofore been.
    A boy eight years old attempted to cross the trench on this plank, as he had frequently done before, but on reaching the middle became dizzy and fell. He might have crossed the street in safety by going a short distance around the trench on one side or by going a block in the other direction. There was nothing to show that the plank was provided for the use of the public as a footway.
    In an action brought against the contractor to recover the damage resulting from the fall,
    
      Held, that there was not evidence of negligence on the defendant's part sufficient to justify the submission of the case to the jury.
    Appeal by the defendant, Daniel J. Creem, from a judgment of the County Court of Kings county in favor of the plaintiff, entered in the office of the clerk of the county of Kings upon the verdict of a jury, and also from an order entered in said clerk’s office on the 1st day of March, 1897, denying the defendant’s motion for a new trial made upon the minutes.
    
      Perry D. Trafford, for the appellant.
    
      Nathaniel H. O lement, for the respondent.
   Willard Bartlett, J.:

There was not sufficient evidence of any negligence on the part of the defendant in this case to justify its submission to the jury. The accident which gave rise to the suit occurred to the plaintiff, a boy then about eight years old, on the 3d day of December, 1895, while he was endeavoring to cross a sewer trench which the defendant had opened in Hancock street, under a contract with the city of Brooklyn. At the intersection of Hancock street with Howard avenue a plank or crossbeam about ten inches in width extended across the trench from side to side, occupying very nearly the same place that the westerly crosswalk parallel with Howard avenue must have occupied before the excavation was made. This plank or crossbeam was one of á series of pieces of timber of the same general character and dimensions which were placed across the trench as the work of excavation proceeded, for the purpose of keeping in position the long timbers which were laid along the top of the interior of the ditch on both sides of it In other words, the plank which the plaintiff endeavored to use as a crossing was one of a number of braces which served in part to hold up the shoring of the trench. The distance between these braces is variously stated at from fourteen to eighteen feet. At the point where the accident occurred the width of the trench was twelve or fourteen feet. The plaintiff, who was on his way home from school at the dinner hour, and had frequently crossed the excavation on the beam at Howard avenue befoi’e, proceeded on it in safety until he reached the middle, when he became dizzy and fell into the trench, sustaining injuries for which the jury have awarded him the sum of $1,300 damages

The theory of the plaintiff’s case, as stated in the complaint, and the theory upon which it ivas tried and submitted to the jury, was that the plank or beam from which the boy fell had been placed by the defendant where it was in order that it might be used by pedestrians and persons crossing over Hancock street from one side to the other for the purposes of a crosswalk; and the alleged negligence consisted of the failure to furnish the narrow passageway, thus provided for public travel, with suitable railings or with guards of some kind to prevent persons from falling off.

Under such a complaint it was necessary for the plaintiff to show that the defendant designed the beam for use as a crosswalk, and thus practically extended an invitation to go upon it to the plaintiff and any others of the public who had occasion to cross Hancock street at the corner of Howard avenue, as long as the excavation remained open, and the beam remained in the same position at that point.'

I cannot find anything in the record, however, to warrant the inference that the plank was provided for the use of the public as a footway, or in any other respect. The photograph which was put in evidence to illustrate the general appearance of things in the street at the time of the accident, shows in the clearest possible manner that these planks or crossbeams were part of the structure erected by the defendant over, in and about the trench which he had undertaken to open in accordance with his contract with the city of Brooklyn for the construction of a sewer in that locality. They were plainly nothing but bracebeams, as they were denominated by one of the witnesses for the plaintiff. It is true that the plaintiff himself spoke of the beam from which he fell as being a beam there for him to walk on, but, as already intimated, the nature of the structure of which it was a part did not warrant the conclusion by any one that it was intended for use as a bridge over the sewer trench. The same observation applies to the testimony of a witness named William S. Reed, who swore in answer to a very leading question on his direct examination, that “ the provision for crossing there at Howard avenue and Hancock street” was the same the night after the accident as it was before, and that it consisted of a single plank. All that this evidence amounts to is an assertion that the same plank was there, but it affords no support to the inference that the plank was a “ provision for crossing.” It was a provision for bracing, and nothing else.

If, under such circumstances, any one chose to use it instead of going a short distance to the right or left, where Hancock street could have been crossed in absolute safety, he took the risk of his enterprise. Indeed, that risk does not appear to have been very great so far as the plaintiff himself was concerned, for he testified that the ditch had been across Howard avenue for about two weeks, and that during that period he crossed the trench on the beam every day. When he fell into the ditch on the last day, it was not by reason of any weakness in the timber or insecurity in its fastening, but solely because he was overcome by dizziness. Such is his own story.

There was evidence in behalf of the defendant that there was a substantial bridge across the trench at the east crosswalk of Howard avenue; but as some witnesses for the plaintiff denied the existence of any bridge there at the time of the accident, the jury were not bound to accept the defendant’s version in respect to this matter. The proof is undisputed, nevertheless, that the plaintiff could have found a perfectly safe crossing over Hancock street by going around the head of the trench which had not progressed very far beyond Howard avenue, or by going a block in the other direction to Ralph avenue, through which he passed daily on his way from home to school, and which was equally accessible as a way back. With these facilities for safe travel between the plaintiff’s school and his father's house, a jury should not be allowed to mulct the defendant in damages, simply because this bright and adventurous boy saw lit to test his agility in attempting to cross by a way obviously not intended as a crossing, and which neither he nor anybody else had been invited to use for the purpose. (See Brennan v. Mayor, 22 N. Y. Supp. 304.)

I think the judgment should be reversed.

All concurred.

Judgment and order reversed and new trial granted, costs to ■abide the event.  