
    Gertrude Kiernan, an Infant, by James J. Kiernan, her Guardian ad Litem, Respondent, v. The Mayor, Aldermen and Commonalty of the City of New York, Appellant.
    
      Negligence—failure to guard a high embankment upon a street.
    
    In an action based upon the alleged negligence of a municipal, corporation, it appeared that the city of Hew York graded an avenue by building an embankment upon it, which was supported hy a retaining wall, rising about twelve feet above the level of the adjoining lot, and having no guard or barrier upon its east side. In the middle of the sidewalk space upon that side was a single row of flags, distant about four feet from the edge of the embankment.
    While passing along upon this flag walk, at the hottest time of an extremely hot day, the plaintiff, a girl aged twelve, tripped, became dizzy, .lost consciousness, and knew nothing further until she was found .at the bottom of the embankment on the easterly side.
    
      Meld, that it was a question for the jury whether 'the absence of any guard or barrier upon the edge of the embankment indicated negligence upon the part , of the city;
    ■That in this case the city could not excuse itself by the claim that it had acted judicially in determining to leave the street in-this condition.
    Appeal by the defendant, The Mayor, Aldermen and Commonaltv of the City of Hew York,, from a judgment of the' Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 13th day of April, 1896, upon the verdict of a jury, and also from an Order entered in said 'clerk’s •office on the 14th day of April, 1896, denying the defendant’s motion for a new trial made upon the minutes.
    
      
      Fra/ncis M. Scott and William 3. Hand, Jr., for the appellant.
    
      Thomas P. Wiclces, for the respondent.
   Williams, J".:

The action was brought to recover damages for personal injuries alleged to have been caused by the negligence of the defendant.

The accident in which the injuries were received occurred on the . 27th day of September, 1895, on Fleetwood avenue, between One Hundred and Sixty-second and One Hundred and Sixty-third streets, in the city of Hew York. In the summer of 1895 the city caused, the avenue at this point to be graded by building an embankment upon it about twelve feet above the level of the- lot adjoining it,, and practically the entire width of the avenue. The width of the avenue was sixty feet, the roadway for teams in the middle was thirty feet, and on either side there was a space, for sidewalks, of twelve feet eight inches. On the west side there was a flagged sidewalk .along in front of the dwelling houses • erected there. On the east side, in the middle of the sidewalk space, was a single row of flags four feet in width, and four feet two and a half inches distant from the eastern edge of the embankment. The embankment oni the east side was supported on its outer edge. - by a retaining wall,, which at the bottom was five and a half inches from the street line,, and at the top was two feet three and a half inches from the street line. There was no guard or barrier on the easterly edge of the-embankment. The embankment was constructed under a contract,, and was completed and accepted by the city in August, 1895. The contract required the contractor to maintain the embankment to the: width and grade of the street, and during the performance of the1 work to place proper guards upon and around the same for the prevention of accidents, but did not provide for the erection of any permanent guard or barrier on the easterly edge of the embankment. At the time of the accident the flags along the easterly sidewalk were in perfect condition.. The day of the accident was. exceptionally hot, the thermometer standing,, at nine a. m., at 901 degrees; at two p. m., 120 degrees; at three p. m.,, 115 degrees, and at four p. m., 101 degrees. Between two and three f. m. the plaintiff,, a girl twelve years of age, who had been sent on an, errand from her home on Fleetwood avenue, just north of One Hundred and Sixty-third street, to One Hundred and Fifty-third street, was returning to her home along the avenue, and while walking along the flag walk on the easterly side of this embankment, about thirty-five féet south of the intersection of One Hundred and Sixty-third street, her foot tripped, she became dizzy, .lost consciousness, and knew nothing further, .until "she was found at the bottom of the embankment on the easterly, side. She had evidently gone off the embankment, fallen to-the. land-below, and had been seriously injured. -.

■•.This, action is brought to - recover damages for the injuries thus,received. .'.The verdict, was a moderate one, and no ■ complaint is made that it was excessive. Nothing appears in the case, to charge th'eplaintiff. with*contributory negligence, and this, question is. not. suggested, by the appellant on this appeal... The only question argued is .that the evidence was-insufficient, to charge the. defendant with negligence, in failing to have a guard or barrier on the easterly edge of the embankment, which would evidently have avoided the acci-. dent;- -There can- be no doubt that, as a general proposition, .it is the-.duty of a. municipal corporation tp keep and maintain its streets and: sidewalks in a. reasonable safe condition for the. public travel; .-and,whether that- duty has been performed, so. as to relieve the,corporation from the . charge, of negligence, is a question for the jury nnder the circumstances of each particular case.. The absence of a guard or barrier along the- edge of an embankment, at the side of a street,, road or bridge, has frequently been found by juries to constitute negligence, for which actions could be- maintained, and such •findings. have been upheld by the courts. (Hyatt v. Village of Rondout, 44 Barb. 386; affd., 41 N. Y. 619 ; Fitzgerald v. City of Binghamton, 40 Hun, 332; affd., 111 N. Y. 686; Ivory v. Town of Deerpark, 116 id. 476; Maxim v. Town of Champion, 50 Hun, 88; affd,, 119 N. Y. 626.)

. It is said, however, that the failure to have a guard .or barrier along the edge of this embankment was the exercise" of a quasi-judicial or discretionary power by the city authorities, and, therefore, . cannot be made the basis of a charge of negligence, and the -following cases are cited to sustain this contention : . Urquhart v. City of Ogdensburgh (91 N. Y. 67; 97 id. 238); Hubbell v. The City of Yonkers (104 id. 434); Monk v. Town of New Utrecht (Id. 553), and other cases.

These cases, however,, were decided upon their own peculiar facts, and have since been frequently distinguished by the courts in the cases, above cited,, where this question has been distinctly raised, and the general rule of liability for such negligence has been adhered to and upheld.. We do not deem, it necessary to go over these cases. The Maxim case (supra) was a case of failure to have a.guard or barrier along the edge of an embankment, and this question of judicial' and discretionary power were distinctly raised. A recovery was had, which was sustained by the General Term upon a review and consideration of all the cases here relied upon by the appellant. And the Court of Appeals affirmed the General Term without an opinion. In the HubbeTl case (supra) Judge Peckham distinctly recognized the correctness of the general rule of negligence we have stated, but distinguished his case, and showed that the general rule was not applicable in that case. . . : -

In the Fitzgerald case (supra) the Ogdensburgk cases were held not.to apply, and the Court of Appeals, in 111 New York, affirmed the General Term, without opinion. In the 'Ivory casé (supra)‘\>b\h. the cases in 104 Hew York were considered and distinguished,' and the general rule was upheld. Wethink that, without .analyzing or discussing these- cases in detail, or attempting, .to distinguish them, we must hold that it was- a question for the jury as to whether the defendant was in this case negligent in failing to maintain a guard or .barrier along the westerly edge of. this embankment. The city very likely could not be held, liable merely because the contract did not provide for such guard or barrier, but after the contract was •completed, and the work was accepted by the. city, it maintained the street without a guard or barrier. The sidewalk ran along the embankment, near its edge. The sidewalk was for. the use of travelers. And the- question whether the street and sidewalk in that condition were reasonably safe for public travel, when this unguarded embankment was so close to the sidewalk, was a question of fact for the jui'y, and if their condition-was not reasonably safe,then the city neglected its duty to the public who had occasion to and did use the sidewalk, and was liable for any injuries caused by such negligence.

It cannot be held as a general proposition that a city may excuse itself from a charge of negligence as, to the, condition and care of its streets, merely by claiming that it had acted judicially in determining to leave the street in a dangerous condition for public travel. The cases in which any such a rule can be applied at all must necessarily be quite limited, and this clearly is not such a case.

Our conclusion is that the judgment and order appealed from should be affirmed, with costs.

Van Brunt, P. J., Patterson, O’Brien and Ingraham, JJ., concurred.

Judgment and order affirmed, with costs.  