
    Margaret Healy, Appellant, v. Catherine Vorndran, Respondent.
    
      Excavation on land near a highway — liability of the owner to one falling into it.
    
    A person who makes an excavation on his own land so near a highway as to render travel thereon dangerous and fails to guard it, is liable to a person who, without negligence on his part, falls into the excavation.
    In an action to recover damages for personal injuries it appeared that the defendant owned an unfenced lot adjoining a public street upon which was a structure called a “ crib” or “ crate” used for the purpose of storing lumber; that in front of the “crib” was a hole twelve feet deep and three feet wide which ran for about fourteen feet within twenty inches of the sidewalk and which had existed for a considerable time and was not protected by any guard or light at night; that the space between the sidewalk and the hole was used by the public as a part of the sidewalk; that while the plaintiff was walking along the sidewalk in the evening' she saw a child sitting on the “crib” near the hole and, thinking it was in danger, went to pick it up when she slipped upon some clay and fell into the hole sustaining severe injuries.
    It appeared that there was a warning placed upon the back of the “ crib ” some distance from the walk, but it did not appear that it was seen by the plaintiff or that it could have been seen at the time when she received the injuries.
    
      Held,, that it was error for the court to dismiss the complaint;
    That the questions of the defendant’s negligence and of the plaintiff’s freedom from contributory negligence should have been submitted to the jury. Ingraham and Laughlin, JJ., dissented.
    Appeal by the plaintiff, Margaret Healy, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Hew York on the 29th day of March, 1901, upon the dismissal of the complaint by direction of the court after a trial at the Hew York Trial Term, and also from an order entered in said clerk’s office on the 4th day of April, 1901, denying the plaintiff’s motion for a new trial made upon the minutes.
    
      Thomas P. Wiohes, for the appellant.
    
      George U. Taylor, Jr., for the respondent.
   Hatch, J.:

This action is brought to recover damages for personal injuries averred to have been sustained by the plaintiff by reason of the negligence of the defendant in leaving unguarded a hole or excavation on her premises contiguous to the street. The complaint avers that the negligence consisted, briefly stated, in the defendant’s failure to fence, enclose or protect a piece of land belonging to her on the southerly side of One Hundred and Forty-seventh street, in the city of Hew York, and to properly enclose, protect and fence a crib, crate or structure or arrangement made of boards, planks or timbers placed across each other at angles, leaving a space between them, forming a sort of network on the top, and which crib, crate or structure was even with or rested on or near the sidewalk, and was supported by posts, beams, planks or boards upon said lot, and allowing the same to continue in such a condition, position and proximity to the street, and in failing to provide proper safeguards to prevent young children from being enticed or. allured from the street upon the crib or upon the land of the defendant.

That the plaintiff, while attempting to remove a young child from a dangerous position on said crib, in the evening, and to save him from falling and being injured, slipped between the sidewalk and one of the planks of the crib and fell or was thrown down into a hole or space, opening or gully along and between or in front of said crib and the sidewalk, and was severely hurt and injured and her left arm broken between the elbow and wrist.

At the close of the plaintiff’s case the complaint was dismissed.

As I view the case, the evidence tended fairly to support the averments of the complaint. The premises of the defendant were vacant, except for a structure which is spoken of as a “ crib ” or “ crate ” which was used for the purpose of piling or storing lumber. The hole into which the plaintiff fell was shown to be about twelve ■ feet deep, three feet wide, and ran for about fourteen feet within twenty inches of the edge of the city sidewalk. The use which had been made of the premises in hauling in and out the lumber and other materials had to some extent broken down the edge of the sidewalk upon this space of twenty inches, but it was used as part of the walk by pedestrians. The hole itself had existed for a considerable time and was not protected by any guard or light at night. As the plaintiff was proceeding along the walk she saw a neighbor’s child sitting upon a timber near the hole. Thinking the child was in danger she took a single step to the side to pick it up, stepped upon some clay by the beam, fell into the hole, going down until her head was about on a level with the sidewalk. In falling she struck her arm upon one of the timbers of the crib or crate, which stopped her fall and broke her arm, on account of which she avers that she sustained permanent injury. Yo evidence was given on the part of the defendant.

I am of opinion that the dismissal of the complaint was unwarranted and constitutes reversible error. The question of defendant’s negligence and the plaintiff's contributory negligence upon the testimony were questions of fact which should have been left for the jury to determine, under proper instructions from the court. When an owner makes an excavation on his own land so near to the highway as to render travel thereon dangerous and fails to guard it, he is chargeable with negligence by a person sustaining injury therefrom, in the absence of negligence on the part of the party injured, contributing thereto. (Beck v. Carter, 68 N. Y. 283; Thompson v. New York Cent. & H. R. R. R. Co., 41 App. Div. 78.)

The defendant, under such circumstances, is in no measure relieved by the fact that in making use of his property and maintaining a hole he has invaded the sidewalk and to some extent destroyed it The particular act here complained of, and the one on account of which the plaintiff sustained injury, was the existence of a hole into which the plaintiff fell. That hole was maintained by the defendant, and the jury were authorized to predicate negligence thereon, if the plaintiff was without fault. It is of small consequence whether the plaintiff was right or wrong in supposing that the child she went to rescue was in danger. She had the right so to suppose, and in turning aside to secure it was not engaged in an act which can be characterized as negligence as matter of law. She had the right to assume that the sidewalk was safe and also to assume that the plaintiff maintained no pitfall in immediate proximity to the walk, and in the absence of knowledge or warning of the existence of the hole her act would not, necessarily, constitute contributory negligence. (Jennings v. Van Schaick, 108 N. Y. 530; Chisholm v. State, 141 id. 246; Ayres v. Del., L. & W. R. R. Co., 158 id. 254, 259.)

Yor can the plaintiff be charged as a trespasser in any such sense as would bar her right to a recovery. The locus in quo was actually used up to the edge of the timber as part of the sidewalk, and the case, in principle, falls within the rule of the authorities which we first cited. The warning was placed upon the back of the crib, some distance from the walk, and was doubtless intended to warn people going upon the premises. It does not appear that it was seen by the plaintiff, or that it could be at the time when she received the injury. In any event, whether it was sufficient as a warning of w'hich the plaintiff was bound to take notice, was a question of fact for the jury.

If these views are sound, it follows that the judgment and order should be reversed and a new trial granted, with costs to the appellant to abide the event.

Van Brunt, P. J., and Patterson, J., concurred ; Ingraham and Laughlin, JJ., dissented.

Ingraham, J. (dissenting):

The defendant is to be held liable upon the principle that where an owner makes an excavation on his land so near the highway as to render travel thereon dangerous and fails to guard it, he is chargeable with negligence, notwithstanding that no such condition is alleged in the complaint or proved upon the trial. Nor did the plaintiff, according to her own story, fall into any excavation, nor was she injured as the result of any dangerous structure1 or condition created or maintained by the defendant. The complaint alleges, and the evidence is undisputed, that the level of the defendant’s land was lower than the surface of the street, the street having apparently been filled up to conform, to its grade, and that the slope down to the level of the defendant’s land commenced upon the sidewalk so that the depression is in the street, and not in consequence of any condition of the defendant’s property or of any use to which it had been put. The complaint expressly alleges that the plaintiff fell into “ the hole, space, opening or gully on the sidevyalk ” — not upon the defendant’s property. Nor was the plaintiff injured by falling into such a depression, either upon the street or upon the defendant’s property. Her testimony is that, seeing a child upon some timber placed upon the defendant’s property, she said to the child, “ Come, I shall take you to1 your mama,” and stepped forward so that the child could come to her; her foot slipped in a red clay that was around that beam, and she fell right down until her head was almost on a level with the sidewalk. It is not claimed that these beams were on the street. The undisputed testimony is that they had been placed upon the defendant’s property by her husband, being used by him in his business as house mover. The plaintiff must, therefore, have walked from the street down the slope to the defendant’s lot, and when she got by the beam stepped upon some red clay that was on defendant’s property. Upon what principle this can be said to impose upon the defendant liability for the accident I am unable to understand. There was no excavation caused or maintained by the defendant. There was no obligation upon her to fence her property so that persons could not walk upon it from the street and slip when there. I assume that the plaintiff was not a trespasser, but assuming that she was rightfully on the property, she was there by no invitation or consent of the defendant, nor in the discharge of any duty. She voluntarily placed herself in this position, possibly for a laudable purpose, but when she was upon the defendant’s property the defendant owed her no duty to protect her from slipping, and is not liable for an injury sustained because some red clay had washed down against the timber that was there and plaintiff slipped upon it. With the law, as stated in the prevailing opinion, there is no objection, but it is based upon an assumed state of facts, neither alleged nor proved in this ease. Nor could it be said that, if the pile of timber placed upon the defendant’s premises was of a dangerous character, the defendant was responsible for it. She had nothing to do with placing the timber there, and if this timber caused the injury, the defendant’s husband, who placed it there and who nsed it for his own purposes, was the person responsible. It seems to me that the facts as alleged and proved are entirely insufficient to charge the defendant with negligence, and I, therefore, think the judgment should be affirmed.

Laughlin, J., concurred.

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