
    WOOD v. THIRD AVE. R. CO.
    (Supreme Court, General Term, Second Department.
    December 2, 1895.)
    Negligence— Construction of Street-Car Track.
    In an action against a street-railroad company for personal injuries, it appeared that defendant laid manhole covers between its tracks, with a circular hole in the center of such covers, 1% inches in diameter, open and unguarded; that, when plaintiff was crossing the street, one of the crutches with which he walked went into the hole, and he was thrown and injured. Held, that the fact that after the manhole was constructed a great number of people had crossed at that place without accident was not conclusive evidence that the construction was a safe one, but was simply a matter proper to be considered by the jury. 34 N. Y. Supp. 698, reversed.
    Appeal from special term, Kings county.
    Action by Thomas P. Wood against the Third Avenue Railroad Company for personal injuries. From an order granting a new trial after a verdict was rendered in favor of plaintiff for $2,000 (34 N. Y. Supp. 698), plaintiff appeals.
    Reversed.
    Argued before BROWN, P. J., and DYKMAN and PRATT, JJ.
    Thomas B. Pearsall, for plaintiff.
    Hoadly, Lauterbach & Johnson, for defendant.
   PRATT, J.

The defendant, which operates a cable railroad, laid manhole covers in the public street opposite the New York entrance of the Brooklyn bridge, with a circular hole in the center of such covers If- inch in diameter. The hole was open and unguarded. The plaintiff crossing the street, one of the crutches with which he walked went into the hole, and plaintiff was thrown and injured. The jury found the construction, negligent, and gave plaintiff a verdict, which was set aside. Plaintiff appeals.

The defendant showed that since the manhole had been so constructed a great number of people had crossed at that place without accident, and claimed that to be conclusive evidence that the construction was a safe one. That view prevailed. We think that, while the safe passage of so- many people was a matter proper for the consideration of the jury, the court went too far in holding that, as a matter of law, it entitled defendant to a judgment in its favor. The hole in the iron cover was large enough to admit the heel of a shoe, and, obviously, it was only a question of time when an accident would occur. It is not rare to see .people with crutches, and they have a right to use the streets. The manhole covers are between the tracks, and if a lady with a high heeled shoe should step upon the hole, it would be a happy accident if she escaped with her life. It is not possible that the good fortune of defendant in escaping accidents for a season can give it a vested right to maintain such a dangerous obstruction in the public street. This is the more obvious when we learn that the only benefit the defendant derives from the hole is that the cover can be lifted about 18 seconds sooner than it can be if built with a notch in the side. That advantage is too trivial to be considered in opposition to the safety of the public.

Order appealed from reversed, and judgment ordered on the verdict, with costs. All concur.  