
    John Burns, as Administrator, etc., of William Burns, Deceased, Appellant, v. Second Avenue Railroad Company, Respondent.
    
      Negligence and contributory negligence — a workman standing in an open trench . under a hoi'se ca/r track, struck, while attempting to avoid a horse which steps into the trench, by a car which is passing over the trench at the time.
    
    Upon the trial of an action brought to recover damages for the death of the ■ plaintiff’s intestate caused by the alleged negligence of the defendant, the plaintiff proved that his intestate was a foreman in the employ of a contractor ' engaged, under a permit from the city, in laying a gas main across a street upon which the defendant operated a horse railroad; that an open trench about three and one-half feet deep had been dug from a point from two to five feet easterly of the easterly track, under and across the easterly track, to within. two and a half feet of the westerly track; that wfiile, on the morning of the accident, the intestate was at work in the trench, between its westerly end and the easterly track, a car approached upon the easterly track; that just before the car reached the trench the driver detached the horses without stopping the car (in order that its own momentum might carry it over the' trench); that while the horses were being driven past the trench along the westerly track, one of them stepped or slipped into the trench, and that the plaintiff’s intestate, upon jumping easterly along the trench in order to avoid the horse, was struck by the car, which was at that moment passing by the trench, receiving injuries which resulted in his death.
    
      Held, that it was error to dismiss the complaint at the close of the plaintiff’s case, as, Upon the evidence, the questions whether the driver was guilty of negli-. gence in. so driving the horses as to permit one of them to slip or step into the trench, there being ample room for their safe passage, and as to whether the intestate might, in the exercise of that reasonable care with which he was chargeable, stay in the trench while the car was passing, or whether he was guilty of contributory negligence in so doing, were for the jury.
    Appeal' by the - plaintiff, John Burns, as administrator, etc., of William Burns, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of. New York on the 23d. day of February, 1897, upon the dismissal of his complaint directed by the court after a trial at th.e New York Trial Term..
    
      William E. Wyatt, for the appellant.
    
      Payson Merrill, for the respondent.
   ■ Williams, J.:

The action was brought to recover damages resulting from the death of plaintiff’s intestate, alleged to have been. caused by the negligence of defendant. The complaint was dismissed at the close of the plaintiff’s evidence. No evidence was given on the part of the defendant. The motion was made upon the grounds that there was no evidence of negligence on the part of the defendant, and no evidence of absence of contributory negligence on the part .óf the plaintiff’s intestate. The court based its decision upon the latter ground,- contributory negligence. To maintain the action, however, it was necessary for the plaintiff to establish both of these elements of his cause of action—to give such evidence as, uncontradicted, would have authorized the jury to find in plaintiff’s favor both the negligence of the defendant and the absence of contributory negligence on the part of the plaintiff’s intestate. Upon the evidence given on the trial' the jury would have been justified in finding the following facts : The accident occurred September 8, 1896, at First avenue and Ninety-sixth street, New York city, at half-past ten o’clock in the forenoon. The defendant was operating a street railroad. along First avenue with horse power, having two tracks in the street, the easterly track used for north-bound cars, and the westerly track for south-bound cars. The plaintiff’s intestate was a foreman in the employ >of Patrick B. Ryan, a contractor, and was engaged in laying a gas main across First avenue. This work was being. done under a permit from the city, and under the supervision of an inspector.

On the morning of the accident, at seven o’clock, the workmen began opening the trench, and opened it from a point two, three or five feet east of the easterly track, across under the easterly track, to a point about two or two and a half feet west of the easterly track, which was within about two or two and a half feet of the westerly track, and the trench was about three or three and a half feet deep. From the westerly end of this trench there was a tunnel under the westerly track, but the surface of the ground was not disturbed in this place. The horses attached to the street cars could not cross, over this trench, along the easterly track, but they could pass along the westerly track, over the tunnel thereunder. This condition of things was visible and apparent to all persons passing by the place. The plaintiff’s intestate and one of his men were down in the trench just west of the easterly track at work on the pipe when the car approached from the south on the easterly track on the occasion of the accident. As the car approached the trench, the driver kept it in motion, so that it would, when the horses were detached, pass along over the trench, without the necessity of pushing it over by hand. He turned his horses to the west, detached them from the car, stepped off the car himself, the car passed on over the trench, and the driver drove his horses past the trench along the westerly track. As the horses passed by the westerly end of the trench, one of them stepped or slipped into the westerly end of the trench, and the plaintiff’s intestate and his assistant, to avoid the horse, jumped easterly along the trench and both came in contact with the car that was at the moment passing by. The plaintiff’s intestate- received such injuries from his contact with the car as caused his death. His assistant was not seriously injured. Upon these facts it could not be said, as a matter of law, that the plaintiff’s intestate was guilty of contributory negligence. There was a legal right to open the trench and lay the pipe across the avenue under the defendant’s tracks. The plaintiff’s intestate had a legal right to work in the trench. The defendant had a right to cross the trench with its cars, and to drive its horses around the trench while its cars passed over it. The plaintiff’s intestate was chargeable with notice that the car in question was approaching, and the car driver saw and knew the trench was open and that plaintiff’s intestate was at work in it. The plaintiff’s intestate was under obligation to exercise such care and caution to avoid injury from the passing car and horses as an ordinarily careful and prudent person, tinder all circumstances surrounding him, would have exercised. Whether or not he did this at the time of the accident was a' question for the jury and not for the court. Whether he should have left the trench as the car and horses approached, or whether he might remain in the trench, by the exercise of ordinary prudence, was a question for the jury. The car was not apparently moving rapidly, and he would have had no difficulty in avoiding contact with it- if there had been no other interference with .the trench by the defendant to disturb him. He could not have foreseen that, at the precise moment the car was passing, the horses would be driven so close to'the other end of the trench that one of them would step or slip into it. This stepping or -slipping of the horse into the trench was apparently a surprise to him; and it was this unexpected occurrence that threw him off his guard and induced him to forget the car for the moment, or at least to jump involuntarily away from the horse and the injury he feared from that direction, and to. come in Contact with the car. It Avas for the jury and not for the court, under these circumstances,-to determine whether he was guilty of contributory negligence. The court was clearly in error in taking this question from the jury and deciding it itself.

It was, however, contended upon this appeal that there was no proof of negligence qn the part of the defendant. It was certainly the duty of the- defendant’s driver to exercise ordinary care to avoid in jury to the plaintiff’s intestate who was in the trench —■ such care . as under the circumstances would giAre reasonable assurance of safety. The condition of things was visible and apparent to him. The car was passing over the trench just east of the plaintiff’s intestate. He had room enough to avoid contact with the car. if he was not pressed upon by the horses at the westerly end of the trench. . Assuming that there was no negligence in allowing the car to • run over the trench , without stopping it, assuming there was ño negligence in turning the horses when detached from the car to the-west rather than to the east, and driving them along the westerly track rather than to the east of the easterly track and the trench, still there was abundant room for the horses to pass by without stepping or slipping into the trench at its westerly' end. There was the whole space, at least, betwben the rails of the westerly track, and two and a half feet east of such track for the horses to travel, in, and avoid the trench itself. The driver was under obligation to use such care, under the circumstances, in driving the horses as should prevent their getting into the trench and thus endangering the safety of the plaintiffs intestate.

Certainly it was for the jury and not the. court to say whether the driver was not, under the circumstances, guilty of negligence in so driving his horses as to allow one of them to step or slip into the trench. Upon both these elements of the plaintiffs cause of action, therefore, the case was one properly for the jury and could not be determined by the court.

Our conclusion, therefore, is that the court erred in dismissing the plaintiff’s complaint, and the judgment appealed from should be reversed and a new trial ordered, with costs of the appeal to the appellant to abide event.

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

Judgment reversed, new trial ordered, costs to appellant to abide event.  