
    Thomas P. Wood, App’lt, v. Third Avenue Railroad Company, Resp’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 2, 1895.)
    
    Negligence—Street car track.
    The fact that a large number of people have passed, without accident, the manhole covers, placed over a cable railroad track, is not conclusive evidence that the construction is safe.
    Appeal from an order, granting a new trial after a verdict in favor of plaintiff.
    
      Thomas B. Pearsall, for pl’ff; Hoadley, Lauterbach & Johnson, for deft.
   Pratt, J.

The defendant, which operates a cable railroad, laid manhole covers in the public street opposite the Hew York entrance of the Brooklyn bridge, with a circular hole in the center of such cover 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 pf 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 n'ot 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 eighteen 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.  