
    WILLIAM HEBREW, PLAINTIFF, v. JOHN M. KELLY CONTRACTING COMPANY, DEFENDANT.
    Submitted May 26, 1924
    Decided August 15, 1924.
    Negligence — Open Trench in Highway — Proper Protection— Plaintiff Testified That There Was Sufficient Light to See Opening — Contributory Negligence.
    On rule to show cause.
    Before Justices Tbenchard, Mintuen and Lloyd.
    Eor the rule, Frank A. Mathews, Jr.
    
    
      Contra, George Gildea, of Kalzenbach & Hunt.
    
   Per Curiam.

This is the plaintiff’s rule to show cause why a new trial should not be granted. The snit was to recover damages for injuries sustained by the plaintiff through a fall into a trench on the southerly side of Broad street, in Palmyra, on the evening of May Gth, 1922. The plaintiff’s evidence disclosed that the defendant had opened the trench and had piled the dirt along the side of it except for a space of about ten feet, which had been left open, level with the surface of: the street. The trench itself extended eastwardly from Cinnaminson avenue, and was protected by a light at the Cinnaminson avenue end and another light sixty-five or seventy feet eastward of Cinnaminson avenue. There was no light at the point where the dirt had been leveled even with the street. It further appeared that this opening was a space used by the public to cross to the railroad station and also to a moving picture house.

The defendant offered no evidence, but tile jury rendered a verdict in its favor. We think it quite clear that the defendant’s negligence was amply and conclusively proven, and if this were all of the case the verdict of the jury could not well be sustained. It appeared, however, that the plaintiff was familiar with the location of the trench and with the embankment of dirt. He testified that it was light enough f.or him to see the ¡files of dirt. The plaintiff’s wife was with him at the time he fell into the trench. She preceded him and passed safely over the trench. When the plaintiff attempted to pass, he fell into the trench and was injured.

The contributory negligence of the plaintiff having been pleaded, we think it was well within the right of the jury to find against him on this phase of the case, and the rule for a now trial will therefore be discharged.  