
    Catharine Crowther, Resp’t, v. The City of Yonkers, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed July 2, 1891.)
    
    1. Municipal corporations—Negligence.
    A municipal corporation is guilty of gross negligence where it permits a trench for a sewer which it is constructing, and which is eight feet deep, to remain unlighted and without guards except at the head of the excavation.
    3. Same—Contributory negligence.
    Plaintiff left her son’s house at six o’clock on a dark evening and was shortly afterward found injured at the bottom of such a trench about seventy feet from the head of the sewer. There was no evidence of attempted suicide or of violence from others. Held, that the jury were justified in finding her free from contributory negligence.
    
      Appeal from judgment in favor of plaintiff, entered on the verdict of a jury.
    Plaintiff was found injured at the bottom of a sewer trench which was being constructed by defendant, about seventy feet from its head and at a place where it was about nine or ten feet deep. Her mind became affected by her injuries so that she was unable to testify on the trial, and no evidence was given as to how the accident was caused.
    
      Joseph F. Daly, for app’lt; James M. Hunt, for resp’t.
   Barnard, P. J.

—The defendant was constructing a sewer in ISTepperhan avenue. The sewer was only protected at the head of the excavation. The sides were left unprotected. On the night of the 7th of January, 1890, the plaintiff was found injured at the bottom of the sewer trench, which was some eight feet deep and some seventy feet from the head of the sewer. The defendant was guilty of gross negligence. Pettengill v. City of Yonkers, 116 N. Y., 558 ; 27 N. Y. State Rep., 531.

The proof that the accident was caused by this neglect was sufficient. The plaintiff left her son’s house in Jones place at about six o’clock to go to her home. She had to cross Nepperhan avenue to get there. She was found in the trench. There was no suggestion of suicide from the evidence and none of violence by others to the plaintiff. The natural inference was that the plaintiff, in her attempt to cross the avenue, fell in the unguarded excavation. She had the right to cross the street with due care at other points than the regular crossings. She also had the right to assume that the streets were safe.

She was free from contributory negligence as matter of law, and the jury were justified in finding her free from contributory negligence as a matter of fact. The night was very dark. The plaintiff was an elderly woman. The point of crossing hiepperhan avenue was in the direct line of her route home. She was found in the trench so soon after leaving her son’s house as to prove that she went directly for her home until she fell in the trench. The trench was invisible to those who found her. The place was unlighted and it was a very public thoroughfare. The action is supported by the cases pf Johnson v. Hudson R. Railroad, 20 N. Y., 65; Totten v. Phipps, 52 id., 354; Tolman v. Syracuse, Bing. & N. Y. R. R. Co., 98 id., 198; Galvin v. The Mayor, 112 id., 223; 20 N. Y. State Rep., 569.

In the case of Bowen v. The City of Rome, 23 Wk. Dig., 406, the plaintiff knew of the excavation, and without due care attempted to cross it and fell in and was injured. She was nonsuited for contributory negligence.

This case had enough evidence to go to the jury on that question, under the rule laid down by the court of appeals in the cases above cited.

Judgment affirmed, with costs.

Dykman and Pratt, JJ., concur.  