
    Jessie I. McNeven, as Administratrix, etc., of John McNeven, Deceased, Appellant, v. William H. Arnott and Robert W. Treffenberg, as Surviving Members of the Co-partnership of William H. Arnott & Co., Respondents.
    
      Negligence — a stranger examining work, in doing which he fails from a runway built solely for workmen, assumes ail risks.
    
    In an action brought to recover damages resulting from the death of the plaintiff’s intestate caused by the alleged negligence of the defendants, it appeared that the defendants, who were engaged as masons and builders in erecting a building, had made a deep excavation under the sidewalk, outside of which •excavation there was a granite sidewalk extending from the curb twelve feet "in towards the building, inside of which granite sidewalk the work had not been completed. A plank runway, put there solely for the use of workmen, •extended across the excavation from the center of the building to the granite sidewalk.
    The evidence showed that the deceased, who was killed by falling into the excavation, did not fall from the granite sidewalk, which it was claimed was not properly guarded on the side towards the excavation, but' fell from the plank runway, having gone upon it to satisfy his curiosity with regard to the work which was being done.
    
      Held,, that the plaintiff could not recover;
    That as it appeared that the deceased was not employed about the' building, and had no business to be upon the runway at all, he was not even a licensee, but was practically a trespasser, to whom the defendant owed no duty, and.that the- deceased assumed all risks attendant upon his coming upon the premis.es.
    Appeal by: the plaintiff, Jessie I. McNeven, as administratrix, etc., of John McNeven, deceased, from a judgment of the Superior Coiirt' of the city of New York in favor of the defendants, entered in the office of the clerk of said court on the 29th day of May, 1895, upon the verdict of a jury rendered by direction of the court, as amended by an order entered in the office of the clerk of said court on the 3d day of July, 1895.
    
      B. F. Einstein, for the appellant.
    
      Charles C. Nadal and Herbert C. Smyth, for the respondents.
   Rumsey, J.:

On the 23d day of November, 1892, the defendants were engaged as masons and builders in erecting a building at No. 497 Broadway. In the course of the work a deep excavation had been made in front of the building under the sidewalk, extending from the curb to the front of the building, which was some little distance inside the house line. The outside of this excavation in front of the building had been covered by - a granite sidewalk, extending from the curb-twelve feet in towards the building. From the inside edge of this1 granite sidewalk toward the building the work on the sidewalk had not been completed,- the defendants at that time being engaged in placing iron work for the glass lights to be let into the sideivalk. From the center of the building to the granite sidewalk extended a-plank runway, as it is called, about two and one-half feet wide, which was put there so that the defendants’ workmen might pass in and out of the building. The husband of the plaintiff fell into this excavation and was killed. All these facts are conceded. Whether or not there was any barrier upon the inside of the sidewalk, and between, that and the hole, from the south end of the plank runway to -the south end of the building, was in dispute, the plaintiff’s evidence tending to show that there was no such barrier, while the evidence of the defendants tended to show that a barrier had been put there and still remained. If it were material to pass upon this question we would be required to presume that the jury would have taken a view the most favorable to the plaintiff upon that point, and have found that there was no barrier at that place.

At the close of all the evidence the case ivas summed up to the jury and submitted to them by the judge, and when they failed to agree, after a considerable period of time, the court recalled the jury and ordered a verdict for the defendants. Upon this verdict the judgment was entered and the plaintiff takes this appeal.

The serious question is whether at the time of his fall MclSTeven was upon the edge of the sidewalk and fell into ijhe excavation while standing there, or whether he had gone upon the plank runway and was standing there looking about him, when he lost his balance and fell. The plaintiff produced no witness who actually saw MclSTeven fall into the hole. The plaintiff’s witness who last saw him living was one Luxenberg, who testified that he was standing at the building next door when MclSTeven came along and stopped to look at the building and spoke to Luxenberg about it. Luxenberg said that MclSTeven when he spoke to him was standing in front of the lower end of the building 497 Broadway, which would be considerably south of the plank runway; that he was standing on the sidewalk in front of the building; that he was faced towards the building looking at it, and he looked straight into the building. He swore that MclSTeven was standing at that time a foot or a foot and a half from the hole where the accident occurred, with liis face towards it. The witness did not see MclSTeven again until he had fallen into the bottom of the hole, when he saw him lying in the place where he fell, or near it. He said upon his direct examination that he saw him in the sub-cellar, having fallen three or four seconds after the time when he spoke to him, but upon his cross-examination the witness said that five minutes elapsed from, the time he spoke to MclSTeven and when he saw him lying down in the cellar. This was the only witness sworn by the plaintiff who testified to having seen MclSTeven shortly before he fell.

On the other hand, the defendants called four witnesses, all of whom testified that they actually saw MclSTeven fall, and each one said that at the time he fell he stood upon the plank runway. Some of-them spoke to him as he stood there and their attention was attracted’to him, and each one of them testified that he actually saw him fall off from the planks, either as he was standing there ■looking about him, or as he was walking towards the entrance of the building. These witnesses do not precisely agree as to the place ■where he stood when he fell, nor do they agree as to the place where the body lay after the fall had taken place ; but the witnesses were in different positions with relation to McNeven' as he stood upon the runway; their attention was attracted to him under different circumstances and they had no occasion to notice precisely the place where he stood. The discrepancies in their evidence in that regard are not sufficient, to discredit them as to their .statement that he was actually upon the runway at the time he fell. Neither were the witnesses able to say exactly where the body lay after. the fall had-taken place, and their evidence differs considerably upon that point, as it also differs from the testimony of the witnesses sworn by the plaintiff. -It is because of. these discrepancies in the evidence as to the position of the body as the witnesses saw' it at the bottom of the hole that the plaintiff insists that their evidence as to the place whence they saw him fall should not be credited, and that the whole question should be submitted to the jury. But a careful considera.tion off the evidence shows that an inference cannot be drawn adversely to- the testimony of these witnesses from the fact that they did not agree where the body lay, or that the jury might have found that it lay at a considerable distance to the south of the runway whence the witnesses say he fell. "

It appears from the testimony of the plaintiff’s witnesses, and is1 not contradicted, that there was a considerable pile of rubbish at the bottom of the sub-cellar upon' which the body of McNeven struck after he fell. The witness Luxenberg testifies that after McNeven fell he looked down and could see him rolling down this hill of rubbish that was there, and he rolled down under the sidewalk towards the street. If that testimony be true the jury must- have found- from the evidence that the body of McNeven did not lie directly under the place where it fell, but that after the fall he rolled towards the inner edge of the graniie sidewalk. Luxenberg and Schroeder, who was one of the defendants’ witnesses, say that the body lay almost under that edge of the granite sidewalk which was nearest the building, and they are the only witnesses who precisely agree as to the place where the body was found. But this testimony loses any force it may have had tending to establish that the fall was not from the place where the defendants’ witnesses, say it was, because of the testimony of Luxenberg that the body rolled after it had struck the pile of rubbish at the bottom of the hole. In view of the testimony of all these witnesses ; of the failure of any witness of the plaintiff to locate the place where McReven stood just before he fell, and of the fact that it appears by the testimony of Luxenberg that a long enough time elapsed after he spoke to McReven for him to have gone upon the runway, we think the jury would have been compelled to find that McReven fell from the plank runway, and that he was not standing upon the granite sidewalk, where he had a right to be, at the time the accident happened to him. That being the case, the defendants clearly cannot be charged with negligence for failure to protect that runway, so that McReven, going over, should not fall off of it. That was a place where he had no business to go. It was erected by the defendants solely for their own convenience and for the use of employees in their work. McReven went upon it to satisfy his curiosity with regard to the work which was being done there. Being where he had no business to be, he was clearly not even a licensee, but a trespasser while he was there. The defendants owed him no duty to take any steps to protect him there. They were not obliged to take any means to protect him, or to see that no harm happened to him. They had no duty whatever with regard to him. It is said by the Court of Appeals' in Cusick v. Adams (115 N. Y. 55) that the principle is now well settled by repeated adjudications that where a person comes upon premises of another without invitation, but simply as bare licensee, and the owner of the property passively acquiesces in his coming, if any injury is sustained by reason of a mere defect in the premises, the owner is not liable for negligence, for such person has taken all the risk upon himself. (See, also, Sterger v. Van Sicklen, 132 N. Y. 499.) The case of Galvin v. The Mayor (112 N. Y. 223) is not in point. In that case it appeared that Galvin was employed to unload coal at a place which was furnished by the city for that purpose, which was ordinai'ily covered by a grating, which was raised when coal was to be shot down the hole. The grating, as it appeared, was so constructed that it was liable to fall, and no proper means of securing it were furnished by the city. The case was disposed of in the courts below upon the ground that the city owed no duty ■ to Galvin to protect the hole because there was no occasion for him to get. under the grating, but the Court of Appeals reversed the judgment of the courts below and ordered a new trial upon the ground of the erroneous exclusion of evidence which was offered to show that Galvin had a duty to perform which would have taken him under the grating. The court said that if that had been made to appear he would not have been guilty of contributory negligence in getting under the grating, and he would have had a right to rely upon it that the city had performed its duty so to erect the grating that it would not fall upon one who had occasion to go under it. The difference between that case and this is quite apparent. There the city owed a-duty to any one who had occasion to go under that grating. Here the defendants owed no duty to one not in their employ who went upoú the plank merely to satisfy his own curiosity.

Upon the point as to where McNeven stood at the time that he fell there was no room for different inferences to be drawn by different persons, but the jury would have .been bound to believe the testimony of the four credible witnesses who swore that they saw him upon the runway and that lie actually fell from it. For that reason the rule laid down in Hart v. Hudson River Bridge Company (80 N. Y. 622), and other cases of that nature cited by the plaintiff, does not apply here..

Upon all the testimony the court was required to take the action that it did, and the judgment must be affirmed, with costs.

Van Brunt, P. J., Barrett, Wilíiams and Patterson, JJ., concurred.

Judgment affirmed, with costs.  