
    George W. Wells, App’lt, v. Rufus A. Sibley et al., Resp’ts.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed April 11, 1890.)
    
    Negligence—Nonsuit.
    There was a manhole in a sidewalk with an iron door three feet square. The accident occurred at 8 p. m. Plaintiff was going quickly for a doctor. He had never passed over this spot. It was not raining or snowing. The streets were lighted hy electricity. The “ Casino ”_was on the corner opposite the" defendants’ store, and this “Casino” was in operation. The plaintiff testified “it was dark there where I was.” The manhole door was open and nearly at right angles with the sidewalk. The plaintiff struck this and went completely over it. Held, that a nonsuit was improper and the question of contributory negligence was for the jury.
    Appeal by plaintiff from a judgment and order denying a motion for a new trial.
    
      Chamberlain & Kerr, for app’lt; Albert H. Harris, for resp’ts.
   Corlett, J.

About the 22d day of May, 1886, the defendants occupied for business purposes the basement and ground floor of ' the, building known as the Osborne House Block in Eoehester, bounded south by Main street, west by North St. Paul street and north by Division street. On the sidewalk on the south side of Division street about a rod from the corner of St. Paul street, in the rear of the Osborne House Block, there was a manhole in the sidewalk covered by an iron door about three feet square, which was raised on hinges. This door when open formed an obstruction to free passage on the sidewalk at that point. This manhole was used by the defendants and their employees as occasion required in carrying on their business. On the evening in question the plaintiff was walking -along this sidewalk from St. Paul street at half past seven or eight o’clock in the evening; fell over this door and received the injuries for which this action is brought.

The complaint is in the usual form of actions for negligence, charging among other things that the act of leaving the door open was wrongful and negligent. The answer in substance admits the occupancy of the basement by the defendants, but denies the other allegations in the complaint. The action was tried at a circuit court held in Eoehester in June, 1889. At the close of the plaintiff’s evidence, the defendant moved for a non-suit upon the grounds:

Hirst. “ That the plaintiff had failed to show that this accident was caused by the negligence of the defendant.”

Second. “ That he has failed to show that he was free from contributory negligence.”

The court granted the motion, and the plaintiff excepted. The plaintiff’s counsel also asked to go to the jury on the question of this being a wrongful act. This was denied, and the plaintiff’s counsel excepted. A motion for a new trial was made and denied. Judgment was entered against the plaintiff for costs, and he appeals to this court.

The errors alleged by the plaintiff are for granting the non-suit, and refusing to submit the case to the jury.

The plaintiff’s testimony on the trial as to what occurred at the time of the injury is as follows: “ I am the plaintiff in this action ; reside in Eochester, and have for about eighteen years; I was in the army, and was connected with the fire department of this city; I am now an agent or peddler, collector and deliverer for Hathaway & Gordon, and have been for sixteen or seventeen years in this city steadily, except about six months that I was away; I am a married man, and have a family of children; on the 22d day of November, 1886, I received an injury; my wife was taken sick; I came down on a car after a mid-wife; went to see if I could get a hack; saw one when I got to St. Paul street, right back of the defendant’s premises; I came to Eochester a stranger, and had no definite knowledge from observation as to what the condition of that street and area back of Sibley’s store was on November 22, 1886; there was an iron plate door that set in the grating; the door was about three feet square; this was about half-past seven or eight o’clock; I was walking on the sidewalk at the time; didn’t know there was any door there at all before I fell; I was going along pretty fast, and I struck that door; I supposed it was all level; I went clear Over the door, and struck my head against a boiler that laid on the sidewalk, and I turned around after picking myself up, and I made a halloo down cellar at them.” The rest of his direct examination relates to the extent of his injuries.

On the subject of what occurred he testified on his cross-examination : “I think the door was open about three feet high; it was not raining or snowing that night; never was there in the evening before that I know of; think the streets were lighted by electric lights; the Casino was on the corner opposite defendant’s store; think it was in full blast that evening; have been in the Casino, but not for two or three years; think it was brilliantly lighted ; there was a little lobby right at the front entrance; I don’t recollect about the lights there at that time; it was dark there where I was; I did not walk over the grating that laid west of the trap door; I fell over the grating and door; I could have passed over two or three rods of grating before I struck the door; think the rods run north and south; I went to the locality a few days after the accident, alone, to look at the place; guess that was after I saw Mr. Sibley about it; don’t know whether it was the same day I saw Sibley or later; do not think that the door was on such an incline at the time of the accident that I could have walked up it as I came to- it; I was on a fast walk when I came to it; looking ahead of me; just at the time I hollered to the hackman, I struck the door; fell clear over it; my body was over; can’t say as to my legs; struck the boiler with my head and the sidewalk with my knee; struck the sidewalk on the east side of it; didn’t stay there more than two or three minutes after I struck, I guess; did not examine the place then; I looked down into the cellar; think I saw two or three men down there underneath this door that was open; down near the foot of the stairs; not under the door exactly; I called out to them; they didn’t answer; think they had a lantern in there; can’t say what they were doing.’’ The plaintiff, on the re-direct examination, further testified: There was no guard or anything whatever to indicate to me "before I struck the door that it was open; the first I knew it was open was when I fell over it.”

James Morgan, the hackman, a witness for the plaintiff, also testified to seeing the accident.

William J. Burke, a witness for the plaintiff, testified that this hole opened into an engine or "boiler room, and that he had seen the door used "by the fireman who attended to Sibley’s boilers, and that he had seen the defendant’s engineer go up and down the hole in the day time, but never in the night.

A person passing along a sidewalk has a right to presume it to be safe. He is bound to no special care and cannot be charged with negligence for not being on his guard against an unlawful obstruction, or for not looking for it, although it is visible. McGuire v. Spence, 91 N. Y., 303.

Under the evidence in this case it is very clear that the trial court fell into an error in non-suiting the plaintiff. In reviewing the propriety of a non-suit, the appellant is entitled to have all the evidence construed in a manner most favorable to his contention. Harris v. Perry, 89 N. Y., 308 ; Sherry v. New York Central, etc., Railroad Co., 104 id., 652; 5 N. Y. State Rep., 574.

But th- .learned counsel for the defendant insists that the plaintiff by asking to go to the jury on the question of the act being a wrongful one, waived or abandoned all claim on the theory of neglige.ue.

In Dickinson v. Mayor, etc., 92 N. Y., 584, cited by the learned counsel for the defendant, it was held that the words, “improperly,” “carelessly,” negligently,” and “unlawfully,” show a cause of action for negligence, and the learned counsel for the defendant is right in claiming that the words unlawful and wrongful are synonymous. It follows, therefore, that when the' plaintiff’s counsel agked to go to the jury on the question of its being a wrongful act, he did not abandon the theory of negligence, for the word itself is a definition of negligence. Aside from this it was held in Clifford v. Dam, 81 N. Y., 52, that all it was necessary for the plaintiff to prove and make out a cause of action on account of falling "into a man-hole in a sidewalk was to show its existence, the defendant’s responsibility therefor, and that the plaintiff fell into it.

So that even if it should be assumed that the word wrongful does not include negligence, or that it is inconsistent with it, still the plaintiff was in any event entitled to go to "the jury on that question. It is alleged in the complaint that the act was wrongful; it is obvious that the trial justice did not grant or intend to grant a non-suit on any question of pleading, or the technical meaning of a single word, but on the merits.

The judgment and order must be reversed, and a new trial granted, with costs to abide the event.

Dwight, P. J., concurs; Macomber, J., not voting.  