
    Dennis Walsh, Respondent, v. Central New York Telephone and Telegraph Company, Appellant.
    
      Negligence — injury from riding a bicycle at night into a manhole at the end, of a subway along the side of which were red lanterns—whether adequate protection was afforded the public is a question for the jury — contributory negligence — charge that the red lights required the exercise of unusual care.
    
    In an action to recover damages for personal injuries, it appeared that the defendant, a telephone company, was engaged in laying a subway on the westerly side of a street running north and south in the city of Syracuse upon which a double-track street railroad was operated; that in the course of the work it had excavated a trench two feet wide and a manhole nine and a half feet by six feet at the south end of the trench; that the dirt from the excavation had been piled on the westerly side of the street and that the easterly side had been left open for public travel; that between the trench and the westerly rail of the westerly track a strip three feet wide had been left open and unobstructed, except where it was encroached upon by the manhole.
    11 further appeared that about nine o’clock on the evening of the accident the plaintiff and his brother, who were each mounted upon bicycles, attempted to ride southerly along the street, the plaintiff riding between the rails of the westerly track, while his brother rode between the two tracks; that, seeing a car coming north on the east track and a man on a bicycle between the two tracks, the plaintiff’s brother turned westerly when about forty feet from the manhole; that the plaintiff did likewise and rode on the strip between the trench and the west car track until he was precipitated into the manhole.
    
      At the time the accident happened red lights had been placed along the dirt pile-on the westerly side of the trench at intervals of about forty feet. There was no barrier of any kind, or light, on the north side of the manhole, but on the southerly side of the manhole, substantially in line with the other danger ' lights referred to, a red lantern' had been placed. There were two electric lights in the vicinity, but they were burning very dim, and the night was quite dark and misty.
    
      Held, that a judgment entered upon a verdict in favor of the plaintiff should be affirmed;
    That it was a question of fact whether the means employed by the defendant to protect the public from peril were adequate and commensurate with the danger sought to bo guarded against;
    That it could not be said, as matter of law, that the plaintiff was guilty of contributory negligence;
    That the court properly refused to charge “ that the red lights were a warning to the plaintiff that there was danger in the vicinity of where they were located, and required him to exercise unusual care in passing that locality.”
    Adams, P. J., and McLennan, J., dissented.
    Appeal by the defendant-, tlie Central New York Telephone and Telegraph Company, from a judgment of the Supreme. Court in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the 19th day of November, 1901, upon the verdict of a jury for $2,500, and also from an order entered in said clerk’s office on the 18th. day of December, 1901, denying the defendant’s motion for a new trial made upon the minutes.
    
      Edwin Nottinghamfor the appellant.
    
      James Devine, for the respondent. ; .
   Spring, J.:

The defendant in the fall of 1900 was engaged in excavating a trench along South Salina street in the city of Syracuse for the purpose of putting in a subway for its wires. The trench was about three feet in depth and two feet across. A manhole had been dug in the street which was nine and one-half feet by about six feet and over six feet in depth. The trench from the north ran into this hole and the brick had been taken out on the south side the width of the trench and in apparent extension of it. The street extends north and south and in the center are the double tracks of the street car line. The dirt from the trench had been thrown out on the westerly side and that part of the street was closed up. The easterly side was open for public travel, and the distance between the curb and the easterly rail of the easterly track was about seventeen feet. The street was paved, including the space between the rails, and there was between the trench and westerly rail of the westerly track'a strip three feet wide which was open and unobstructed except for the manhole. On the night of September fifteenth there were red lights along the dirt pile on the westerly side of the trench and they were placed about forty feet apart, there being nine or ten covering the distance of three hundred and ninety-three feet from the manhole to Temple street, the second intersecting street on the north. There was no barricade - or barrier around the manhole. On the southerly side was a wheelbarrow with the wheel in the continuation of the trench, and a red lantern was placed on a board extending westerly on the barrow to the dirt pile and which brought the light substantially in line with the other danger lights referred to. There was also one in the same line at the northwesterly corner of the manhole. There was no hoard or protection of any kind' on the north side of the hole. There was an electric light in the street about ninety feet south of the manhole on a pole thirty feet from the ground, and one north one hundred and sixty to one hundred and seventy-five feet distant at the junction of South Salina street with Jackson street, but both were burning very dimly.

About nine o’clock in the evening the plaintiff with his brother came into South Salina street from Onondaga street, each riding on a bicycle and traveled southerly, the plaintiff riding between the rails of the westerly street car track while his brother was between the two tracks and they were going about four miles an hour. They saw a car coming north on the east track and a man on a bicycle between the two tracks and the plaintiff’s brother turned westerly when about forty feet from the manhole, and the plaintiff did likewise, there-, after running along on the strip between the trench and the west car track, and was precipitated into the manhole head foremost, sustaining serious injuries. It had been raining and was then misty and quite dark,

The jury were justified in finding the defendant guilty of neglb gence in leaving this excavation in the middle of a prominent street of a city without any barricade or protection except the red lights which were intended primarily to warn wayfarers of the opep trench. Strung along as they were without any deviation they might even tend to divert the attention of a traveler from any other danger than that which they were ostensibly put up to apprise him of. The defendant was rightfully in the street. It had a lawful right to dig its trench and the manhole, but inseparably connected with that privilege was the duty ever insistent as an active imperative obligation to be diligent and careful to make the street as safe for travelers over it -as was consistent with the prosecution of its work, and whether the measure of that duty was met in this particular case was-for the jury to determine, ' (Lane v. City of Syracuse, 12 App. Div. 118; Donnelly v. City of Rochester, 166 N. Y., 315; Deming v. Terminal Railway of Buffalo, 169 id. 1, 10.)

The placing of the lights, along by the side of the trench was obviously in recognition of its duty to protect the public from peril, and it was a question of fact whether the means employed were adequate and commensurate with the dangers sought to be guarded against. (Snowden v. Town of Somerset, 171 N. Y. 99; Dillon Mun. Corp. [4th ed.] § 1010.)

Nor is it for the court to. say as matter of law that want of care is imputable to the plaintiff. He was lawfully in the street, rightfully relying upon the assumption that it was reasonably safe except for the obvious danger of the trench which he was avoiding. (Weed v. Village of Ballston Spa, 76 N. Y. 329; Collier v. Collins, 58 App. Div. 550.)

There was ample space, between the trench and the westerly rail of the street railway track for the plaintiff to travel in safety. It' was part of the paved street, and when he saw the bicyclist and street car approaching, and his brother veered off toward him, lie was called upon to change his course, and the jury have said the reasonable route for him to take was along next to the trench. In view of the injuries which he lias Sustained it might have been more prudent for him to stop, or in some way to get over to the east side of the street. If he had- adopted. the latter course, however, and collided with the'oncoming street, car or the bicyclist it might have been regarded as the foolhardy way for him to adopt- to avoid peril. In considering the plaintiff’s conduct we must bear in mind that he knew only of the trench when' he elected to turn on the three-foot strip. He was not bound to anticipate the peril of an unguarded excavation ten feet deep exactly in line with the course he had taken.

The rule is well settled that contributory negligence ordinarily is one of fact. What a man of fair prudence would be apt to do under a precise condition of affairs is, as a rule, for twelve men composing the jury to determine.

In Eastland v. Clarke (165 N. Y. 420) the court quote approvingly the folio wing extract from Bernhard v. Rensselaer & Saratoga R. R. Co. (1 Abb. Ct. App. Dec. 134): “ If there is any conflict in the evidence going to establish any of the circumstances upon which the question depends, it must be left to the jury. If there are inferences to be drawn from the proof which are not certain and incontrovertible, they are for the jury. If it is necessary to. determine, as in most cases it is, what a man of ordinary care and prudence would be likely- to do under the circumstances proved, this, involving as it generally must, more or less of conjecture, can only be settled by a jury.”

Of like import are Kettle v. Turl (162 N. Y. 255) and Henavie v. N. Y. C. & H. R. R. R. Co. (166 id. 280, 285). It is no answer to the logic of these authorities to say that the plaintiff was careless in going on this strip. The only reason that might be urged is because of the trench, and had he fallen into that excavation there would be some point in the suggestion, but he was not injured by the trench. That danger was apparent and he avoided it. He was injured by a defect which he did not apprehend and which was not observable to him.

The counsel for the appellant asked the court to charge as follows, And I ask your Honor to say that the red lights were a warning to the plaintiff that there was danger in the vicinity of where they were located, and required him to exercise unusual care in passing that locality,” which the court declined to do and an exception was taken. There was no error in this refusal to charge as requested. The fact that red lights were placed along in line with the trench did not warrant the instruction that by reason thereof as matter of law the plaintiff was called upon to exercise unusual or extraordinary care. Their location was a circumstance of more or less potency to be weighed by the jury bearing upon the question of plaintiff’s conduct. The court in his main charge had already called the attention of the jury to the existence of these lights as one of the facts for them to consider in passing upon that question. These red lights might have been significant as a warning to the plaintiff that there was danger, but the especial danger to which .they would naturally call his attention, as the jury might say, was the trench itself,-which did not cause the injury. To say, as the request signified, that because these lights were along the course of the trench as matter of law they required the plaintiff to exercise unusual care to guard against a danger of which he had no intimation, is more than the defendant was entitled to.

I have examined the other exceptions to the refusal to charge and find none requiring discussion. The charge was fair and lucid and covered the ground fully.

The judgment and order should be affirmed, with costs.

Williams and Hiscook, JJ., concurred ; Adams, P. J., dissented on the ground that it was error in the trial court to decline to charge in accordance with the request of the defendant’s counsel that, in view of the situation which confronted the plaintiff, he was bound to exercise unusual care; McLennan, J., dissented.

Judgment and order affirmed, with costs.  