
    Thieme v. Gillen.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed July 23, 1886.)
    
    1. Negligence—Streets—Use of, by individual, subject to rights of
    CITY TO LAY PIPES—WHEN CONTRACTOR NOT LIABLE FOR INJURY.
    Where the contract with the city of Brooklyn for laying water pipes did not require crossings over the ditch to be left where the city had made none in the street, and plaintiff was injured in trying to cross a ditch where there was no crossing made by the city or left by the contractor Held, that the contractor was not negligent. That while the plaintiff had the right to use the street anywhere her right was subject to the right of the city to lay water pipes.
    
      2. Same.
    That proof of a breach of a provision in a contract made for the conven ience of the city in delivering pipe and not for safety has no relevancy
    Appeal from judgment dismissing complaint.
    
      Zimmerman & Jacob, for appellant.
    
      J. Stewart Boss, for respondent.
   Barnard, P. J.

The defendant was a contractor under the city of Brooklyn to dig a trench in Bedford avenue and to set water pipes therein. The city was to furnish the pipes. Under this contract the defendant had opened a trench in the avenue about four feet deep and from one to two feet in width in front of Morton street. This street did not cross the avenue but terminated in it. There was no crossing there. The mode of doing the work was to tunnel under the crossings and leave them free for passage by persons traveling on foot across the avenue. There being no crossing at the junction of Morton street with the avenue, the trench was continued without this tunneling. There were crossings within one or two hundred feet of this junction of Morton street and the avenue.

On the 11th of May, 1884, in the forenoon, the plaintiff, being on the avenue opposite the north of Morton street, attempted to cross this trench, and although there is some confusion as to the manner of the injury, she did step into the excavation and was hurt. The clause in the contract which required the defendant to put the earth from the excavation all on one side of the trench, was not a measure of safety. It was only called for for convenience of delivering the pipe into the excavation. The clause requiring the excavation to be shored when it became necessary for the public safety, has no relevancy. The trench was firm and did not occasion the injury. There was dirt on each side of the excavation about two feet on one side and one on the other.

The plaintiff says, in her examination before trial, that she stepped on the large pile of dirt and it slipped with her into the ditch. Upon the trial she says she slipped from the large pile to the smaller one (over the trench), and that the small pile crumbled and let her into the trench.

In neither view was the accident occasioned by the defendant’s negligence. He was not required to make a crossing where the city had made none, and while the plaintiff had the right to use the street anywhere, her right was subject to the right of the city, to lay water pipes in the streets.

There is no question made that the obstruction was continued beyond the time needed to do the work, and crossings were made so near the place where the plaintiff attempted to pass without one that the absence of a place to cross at the point in question would not be sufficient to support a verdict.

The judgment should, therefore, be affirmed, with costs.

Dykman, J., concurs.  