
    Leonard A. Merritt, respondent, v. Maurice Fitzgibbons and others, appellants.
    
    
      (Court of Appeals,
    
    
      Filed June 1, 1886.)
    
    Negligence—Obstruction on sidewalk—When city ordinance will JUSTIFY DRIVING OF HORSE UPON.
    Where the rails of a street railroad in the city of New York are so near the sidewalk as to prevent a cart or other vehicle from passing, a city ordinance made it lawful for the owner or occupant to allow such cart to drive on a part of the sidewalk. Plaintiff, while attempting to pass along such a sidewalk, stepped upon an iron cover of a coal hole, made slippery with snow, and fell under a horse, partly upon the sidewalk, and had his ankle broken by the horse stepping upon it. Held, that as the horse was necessarily on the walk, and sufficient space was retained for the passage of pedestrians between the cart and store, and the validity of the ordinance was non-questioned, defendant’s motion for nonsuit should have been granted.
    
      Appeal from judgment general term supreme court, second department, affirming judgment and order refusing to set aside verdict and denying new trial.
    
      De Witt C. Brown, for appellants, Maurice Fitzgibbons and others.
    
      P. Q. Eckerson, _or respondent, Leonard A. Merritt.
    
      
       Reversing 32 Hun, 465.
    
   Danforth, J.

The action was for damages sustained by the plaintiff while attempting to pass along a sidewalk in front of certain stores occupied by the defendants, and known as Nos. 65 and 67 on the east side of Crosby street, in the city of New York. The material facts are as follows: On the last day of December, 1879, the plaintiff and his brother were at work on the west side of Crosby street, but it commenced snowing, and they left at half past one o’clock. They crossed to the east side, below the defendants’ stores, and, going up, they there found a team of horses and truck, and at that point, while passing, the plaintiff stepped upon the iron cover of a coal-hole, slippery with snow, and fell under the horse nearest to him, touching its leg. The horse raised its foot at that instant, and then put it down, striking the plaintiff’s ankle, and breaking it. The sidewalk was seven feet and nine inches wide; the street a narrow one, and in part occupied by a double-track horse railroad. Between the curbstone and track is five feet three inches, one foot of which is covered by the projecting car. The truck was seven feet eight and one-half inches wide. It and the horses belonged to the defendants, and on this occasion they were partly in the street and partly on the sidewalk, but in their customary place, and, from necessity, one horse being on the sidewalk, the other in the street, leaving just room for the cars to pass. The team was then in care of its driver. The horses were gentle, and at the time in question, except as above stated, neither stirred. Sufficient space was left on the sidewalk for wayfarers. This was testified to by the plaintiff and by the defendant’s witnesses. It was also practically demonstrated by the safe passage of many persons; and there is no room for doubt that the plaintiff would have gone through uninjured except for the coal-hole and its condition.

The plaintiff also put in evidence a city ordinance, prohibiting under a penalty, the going of any horse upon any of its sidewalks. The defendants, upon the other hand, both by answer and by evidence, relied upon an ordinance of the city which made it lawful for the owner or occupant of any store or other building, on any street “in which the rails of any railroad company are laid so close to the curbstone as to prevent the owner or occupant from keeping any such cart or other vehicle in the carriage-way in front of Iris place of busmess without interference with the passing of the cars of any such railroad company, to occupy with such cart or other vehicle durmg business hours so much of the sidewalk as may be necessary for such cart or other veMcle, provided that sufficient space be retained for the passage of pedestrians between the cart or other vehicle so permitted to occupy such portion of the sidewalk and the stoop or front of every such store, warehouse, or other building;” and, by evidence wMch was not controverted, showed that the street in question was situated as described in the ordmance.

On the trial the contention in behalf of the deféndants was that there was no fault or negligence on their part; and, even if there were, that there was contributory negligence on the plamtiff’s part in stepping upon the cover of the coal-hole, and in going unnecessarily near the horses; and they moved the trial judge to dismiss the complaint. The motion was denied, and the defendants excepted. The learned judge then submitted the case to the jury upon both of these propositions, at the same time saying that the plaintiff had no right of recovery against the defendants by reason of the coal-hole, or any mcident to it; that they were responsible neither for it nor its condition. No exception was taken to the charge by either party, and the only question far us to consider is whether the evidence was such as m any view would justify a verdict for the plaintiff.

It appears that he was rightfully upon the sidewalk, and the jury might find, as they did, that he was proceeding on his way with reasonable care, and in a proper manner, without notice of any circumstance of danger which required extraordinary caution. But, assummg this to be so, we are unable to find that the defendants neglected any duty or were guilty of misconduct towards him. It may be conceded that the plaintiff would not have been injured if the defendant’s horse had not been upon the sidewalk, and, in ordmary cases, its presence at that place would have been an obstruction, and its owner answerable for the consequences, but both conditions of the ordmance last cited were satisfied by the circumstances of the case. The truck and horse were necessarily on the walk, and sufficient space was retained for the passage of pedestrians between the cart and store.. The evidence left no room. for doubt as to either; and, as the validity of the ordinance was unquestioned by the plaintiff at the trial, it furnished a complete answer to his action, unless, as is now argued in his behalf, its permission is limited to “a cart or other vehicle,” and does not include the animal by which the vehicle is drawn. The ■contrary was assumed by both parties and the court upon the trial, and it was, we think, the reasonable construction. 'The ordinance in one part speaks of “ driving ” or “backing the cart or vehicle” “on the cross-walks,” “or onto the sidewalks,” implying, of course, a cart or vehicle drawn or moved in the ordinary way; and the same construction must apply to the other part,—that now in question. It cannot be supposed that the owner of the cart would be expected to detach his horses, leaving them in the street between the cart and the street car, while the cart itself was put in a place of safety. The ordinance is, in substance, a declaration that as the railroad encroaches upon the street, so certain vehicles in use therein, and the animals by which that use is made possible, may, in prescribed cases, encroach upon the sidewalk.

We think the exception was well taken; and for the error to which it points the judgment appealed from should be reversed, and a new trial granted, with costs to abide the event.

All concur.  