
    Johannah Scanlon, Respondent, v. The City of Watertown and Others, Appellants.
    
      Negligence—a city cannot delegate to an independent contractor its duty to safeguard an-excavation in a street—contributory negligence..
    
    A municipal corporation must keep its streets in a safe condition for public travel, and it cannot absolve itself from this liability by an attempted delegation of its duty in this respect to an independent contractor, who is prosecuting a public improvement in a street, by inserting in the contract express provisions for the protection of the'public by the contractor.
    A person using a public street has a right to assume that the street is in a safe condition for travel, but the rule has no application where he approaches an obstruction with knowledge of its existence and location.
    Where, however, a person approaches, after dark, an excavation made in a street which she has crossed within a few days by means of a temporary bridge which . has since been removed, and she testifies, upon the trial of an action brought by her to recover damages from the municipality because of an injury arising out of the existence of the excavation, that she had no knowledge of the removal of the bridge, and supposed it was still in position, and that she walked along to its former location, looking ahead intently to see where she was going, by a path practically unobstructed, the question of her contributory negligence is one for the jury, notwithstanding the fact that there were red and white lights upon either side of the excavation, and that there were logs and poles of some size lying about which should have indicated the necessity upon her part of exercising caution in her approach to the excavation.
    
      Appeal by the defendants* The City of Watertown and others, . from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Jefferson on the 11th day of June, 1895, upon the verdict of a jury rendered after a trial at the Jefferson Circuit, and. also from an order bearing date the 6th day of June, 1895, and entered in said clerk’s office denying the defendants’motion for a new trial made upon the minutes.
    The plaintiff brings this action to recover damages for personal injuries which she claims, to have sustained by reason of falling into an open sewer, which was at the time in process of construction in the city of Watertown.
    The work upon this sewer, which extended from the Public Square into Washington street, was being prosecuted under a contract with the defendants Ryan & Avery, who .in their contract with the city expressly stipulated that the work should be properly and sufficiently guarded with barriers and lights at all dangerous places, and that “ watchmen shall be stationed at such dangerous places,, if required, and such .other means taken. as will. tend to prevent accident or injury to persons or property in consequence of the work.”
    The plaintiff in her complaint alleges that, while crossing from the west to-the east side of Washington street at about eight o’clock on the evening of October 6,1894, on the sidewalk or crosswalk leading from the Arcade entrance to the Washington Hall block, she fell into the sewer, which had been excavated to the depth of about fourteen feet, by reason of the careless and negligent manner in which the same had been left by the defendants, and without any fault of her own.
    The defendants answered separately, the city of Watertown denying the allegations of the complaint, and alleging that the work of the sewer was being done under a contract; that, it had no power to direct or control the manner or method of its performance, and that the negligence complained of, if any, was that of the contractors, for which it was in no wise responsible.
    The issues thus, joined came on for trial at the Jefferson Circuit in May, 1895, and the jury rendered a verdict in favor of the plaintiff for $2,000. Judgment was subsequently entered, from, which, ■ as well as from an order denying the. defendants’ motion for a new trial upon the minutes, this appeal is brought..
    
      
      O. H. Wats and D. G. Griffin, for the respondent.
    
      Edward PT. Smith, for the appellant, The City of Watertown.
    
      Purcell <& Carlisle, for the appellants Ryan & Avery.
   Adams, J.:

The evidence contained in the record tends to prove that Washington street was one of the principal thoroughfares of the city of Watertown; that the sewer, at the point where the accident occurred, had been excavated to the depth of at least ten feet, and that it was from eight to ten feet in width.

It was conceded by one of the defendants when upon.the witness stand that there was no other point along its entire length which presented greater dangers to travelers; and there is no pretense that a watchman had been stationed there to warn people of the dangerous condition of the street. The evidence as to the character and extent of the means adopted to prevent accident was more or less conflicting; so that a clear question of fact respecting the defendants’, negligence was raised; and counsel, upon the argumént, frankly conceded that as to that feature of the case the verdict of the jury was conclusive.

The court was advised with equal candor that the only grounds relied upon for a reversal of the judgment and order appealed from were (I) the absence of all liability upon the part of the defendant the city of Watertown in any event; (2) the excessive amount of the damages awarded; and (3) the failure of the plaintiff to establish due care and effort upon her part to avoid the danger which confronted her. We will proceed, therefore, to consider these several propositions in the order in which they have been stated.

The contention that the city of Watertown is not liable for the injuries which befell this plaintiff rests upon the assumption that, by entering into an independent contract with a third party to construct the sewer, over whose methods and acts it had no control, and from whom it had exacted a stipulation that proper precautions should be taken for the protection of the public, the municipality relieved itself from all further duty or obligation in respect of the matter. Such undoubtedly is the general rule (Wood v. City of Watertown, 58 Hun, 298, and cases cited), and it is one which might be invoked in aid of the defendant’s contention were it not for the fact that the circumstances of this case create an exception to the rule.

The defendant is a municipal corporation. As such, it rests-under an obligation to keep its streets in a proper and safe condition for public travel, and it is bound to exercise a reasonable degree of diligence to accomplish this end. ■ If it obstructs one of its streets or permits it to get out'of repair it is liable, in the absence of reasonable care, to one who • is injured in consequence thereof. And it, is settled by an unbroken line of authorities that it cannot absolve-itself from this liability by an attempted delegation of its duty to a, third party who happens to be prosecuting a public work under a contract with the municipality, in which express provision is made for the protection of the public by one contractor. (Storrs v. City of Utica, 17 N. Y. 104; Busso v. City of Buffalo, 90 id. 679; Pettengill v. City of Yonkers, 116 id. 558. See, also, 2 Dillon on Mun. Corp. § 790.)

The learned counsel for the defendant cites the case of Herrington v. Village of Lansingburgh (100 N. Y. 145) as an authority in support of the proposition advanced by him. That case, however,, was very different in its circumstances from the one in hand. There the plaintiff’s team, which was standing in a street crossing the one in which a sewer was being constructed, was frightened by the noise of a blast, fired by the contractors in the. prosecution of" their work, and while attempting to control his horses the plaintiff: was injured. It was. held by a divided court that the defendant was liable, but in the prevailing opinion Earl, J., is very careful to-say that, “ At the place where the horses were fastened the street was in perfect condition, and the horses did not become restless or frightened from anything existing in the street, and the-accident-was in no way caused, by mxy imperf ect condition of the street, but-simply by noise resulting from the blast.”

It will be seen at a glance that this case had no application to the one now under consideration, and we pass, therefore, to the question of damages, which, it is insisted by the defendant, are excessive in their amotint.

Considerable evidence was given upon the trial of the case respecting the nature and extent of the plaintiff’s injuries, some of which did, perhaps, tend to show ■ that they were not so serious as she claimed them to be, and in a measure to justify the charge that she was malingering-. But this feature of the ease was fully submitted to the jury, who saw and heard the various witnesses, and, in view of the conflicting character of the evidence upon this branch of the ■case, we do not feel disposed' to interfere with their verdict, especially as the damages awarded cannot be deemed excessive if the statements of the plaintiff and her witnesses are to be believed.

The serious question in this case is that presented by the defendant’s third proposition, which is, in effect, that in approaching this open sewer the plaintiff was unmindful of the obligation resting upon her to exercise such a degree of care and caution as should be ■commensurate with the dangers surrounding her. It is a well-established rule of law that a person using a public street is not required to exercise vigilance to discover dangerous obstructions lying in his path, but may'walk or drive by day or night, relying upon the assumption that the corporation has fulfilled the duty imposed upon it to keep its streets in a safe and proper condition for public travel. (Pettengill v. City of Yonkers, supra.)

This rule has no application, however, to cases where a traveler approaches an obstruction with knowledge of its existence and location. ( Weston v. City of Troy, 139 N. Y. 281; Neddo v. Village of Ticonderoga, 77 Hun, 524.)

That the plaintiff had notice of the excavation in Washington street is not to be denied, for she had seen it and walked over it but a few days prior to the day she received her injury; but even if such were not the case, it is quite apparent that the means adopted by the contractors to warn people of the situation were such as must have conveyed some notice to her that the street was not in its normal condition, and, therefore, if there were nothing more of the case than that which has just been stated, we should be inclined to hold, as a matter of law, that the plaintiff was guilty of contributory negligence, even upon her own narration of the circumstances attending her falling into the sewer. But before this question can be properly disposed of, there are other' facts and circumstances to be considered which, in our judgment, tend quite materially to weaken the defendant’s position.

It seems that a platform or bridge had been constructed by the contractors to throw across this chasm, upon either side of which there was a handrail, and at either end of which was a step and a guardrail. When properly adj usted, this bridge connected the crosswalk in such a manner as to afford a perfectly, safe and easy means of passage over the sewer.

The plaintiff was aware of the existence of this bridge and of the purpose for which it was used. On Wednesday preceding the day of the accident she had used it to cross' from the Arcade to Washington Hall block. But as the work upon the sewer progressed it became necessary, or desirable, to remove the bridge, and this was done the following day. On the evening of the accident, which was Saturday, the plaintiff says she had not. heard of the removal of •the bridge, and supposed it was still in the position in which she had last seen it. There was no sign or notice at the street corner to indicate that any change in the situation had taken place, and,, acting upon the assumption that the bridge was still there, she started to cross Washington street, and in going towards the sewer met people coming from the opposite direction who had apparently just crossed the same, as, indeed, one or two testified' was the fact, they having walked upon some ties about six inches in width which had been thrown over the excavation. The plaintiff testifies that she was looking ahead intently to see where she was going; that she supposed the bridge was- there and Mras looking for it; that it was dark, and the first thing she knew.she went into the ditch feet first. In this statement of the situation, and of the manner of her falling into the sewer, she is corroborated by the witness Clark, who was walking behind her ; but just here, aiid in this connection, it is proper to advert to another circumstance upon which the defendant places great reliance in its contention that the plaintiff was not free from negligence which contributed to the injury of -which she complains. Several of the defendant’s witnesses testified that a number of logs or poles, which were some six or eight inches in diameter, and which had been used in blasting to keep the pieces óf rock from flying into the air, were laid! upon the Washington street crosswalk at the close of .the day’s work on Saturday, and that the plaintiff could not have reached the sewer without climbing over or going around these poles. It is insisted that this, of itself, afforded ample notice of the situation* and that in addition thereto the red and white lights were indications of danger, which ought not to have been disregarded.

The evidence, as a whole, seems to leave no doubt that there was a red light upon the west and a white light upon the east side of the sewer. But this might well have been the case had the bridge remained in position, for there were various obstructions, such as an engine, jjiles of sand, barrels, planks, and other articles in the street, aside from the ditch itself, to be guarded against. So that the significance of these lights was, in view of the conditions with which the plaintiff had the right to assume she was surrounded, a matter concerning which different opinions might be entertained. And the evidence relating-to the situation of the poles, and the extent of the barrier they presented, is subject to the same criticism. If, as some of the witnesses testified, they extended clear across the walk and were piled on top of each other, it would be difficult to understand how any person, especially a woman, could get over them without receiving some notice of the purpose for .which they were thus placed. The plaintiff testifies, however, that, while there may have been some poles there, she neither climbed over nor turned off the walk to pass around them, but that she walked straight ahead into the ditch, and there was ample corroboration of her testimony in this regard to justify the jury in concluding that she told the truth. Nearly all of the witnesses who gave evidence upon the subject say that the poles were thrown across the walk “promiscuously,” and many of them, including some called by the defendant, testified that they did not reach across the entire walk, but that there was a space of two or three feet upon the south side thereof which was. not covered or obstructed in any manner by them.

These matters were all adverted to by the learned trial justice,, who very clearly instructed the jury in regard to their bearing upon the question of contributory negligence; and while the case, so far as this branch of it is concerned, may be - regarded as verging upon the border fine, we are inclined to think that, upon the whole, it was properly disposed of at the Circuit, and that the verdict of the jury should not be disturbed.

Our attention has been directed to the recent case of Whalen v. Citizens' Gas Light Co. (151 N. Y. 70), which is supposed to vindicate the defendant’s contention" respecting the question last considered. But a mere statement of the distinctive features of that case is sufficient to distinguish it from the case in hand. There the defendant was engaged in laying a gaspipe across a sidewalk in the city of Brooklyn. For this purpose it had removed two of the flagstones of the walk and dug a trench in which to lay its pipe. One of the flagstones which had been removed was laid on fop of another, and a space of about tive feet in width was left between the two openings, over which a traveler could walk in perfect safety. The plaintiff, an old lady, in broad daylight, with nothing to obscure her vision, and with the situation confronting her made perfectly obvious, tripped over the displaced flagstone and fell, recéiving the injuries of which she complained. It ivas held that in these circumstances she could not recover. The case came directly within the principle laid down in Weston v. City of Troy (supra), which, as we have attempted to show, has no application to ■the somewhat peculiar circumstances of the present case.

The judgment and order -appealed from should be affirmed, with costs.

All concurred.

Judgment and order affirmed, with costs.  