
    John Brennan, Guardian ad litem, App’lt, v. The Mayor, etc., of the City of New York, Resp’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed January 13, 1893.)
    
    Negligence — Contributory—Excavation in street.
    Defendant had caused a sewer trench to be excavated in a street, the earth being thrown out on the south side, forming an embankment about four feet high, while the other sides were protected by planks laid on barrels. There was sufficient space left at the ends for teams to pass. Plaintiff’s spn, a newsboy, twelve years old, instead of passing round the obstruction, walked up the embankment and as he turned to go back slipped and fell into the excavation and was injured. He claimed that the reason that he went that way was that the earth appeared to have been trodden by others. Held, that his contributory negligence was clear, and that a. dismissal of the complaint was proper.
    Appeal from judgment of nonsuit and from order denying motion for a new trial.
    Action to recover for personal injuries sustained by plaintiff’s son, James Brennan, by falling into an excavation in a street.
    
      N. J. & N. J. Waterbury, Jr., for app’lt; Theodore Connoly and Terence Farley, for resp’t.
   Per Curiam.

This action was brought to recover damages for personal injuries caused by the alleged negligence of the defendant, in failing to exercise due care to protect persons traveling on the public streets of the city from injury. Avenue A extends northerly and southerly, and is crossed at right angles by Ninetieth street. On the 5th of June, 1890, the citv caused to be excavated a sewer trench eight or nine feet deep, from five to eight feet in width, and extending from the west curb line of the avenue westerly, in Ninetieth street, sixty or seventy yards. The earth was thrown out on the south side of the trench, forming an embankment about four feet high, and extending the whole length of the excavation. At the time of the accident work on the trench had been suspended for the day, and it was protected on the north side by planks laid on barrels standing on end, on the south by the embankment, and on each end by planks laid crosswise. The plaintiff, a boy of twelve years of age, was engaged at the time of the accident in distributing and selling newspapers. He had resided in the city for five or more years, had attended its public schools and was familiar with its streets. He testified that between six and seven o’clock p. m. of June 5,1890, he went on the west sidewalk of the avenue from Eighty-sixth to Ninetieth streets, -on his way to Ninety-second street, for the purpose of delivering a newspaper to a customer. When he reached Ninetieth street he saw the embankment, which, he said, was a. little higher than his head. His father and another witness called by the plaintiff testified that there was room enough between the east end of the trench and the west rail of the nearest street car track for teams to pass. Instead of passing to the right, around the end of the trench, he walked up the embankment, and, as he was about turning back, -he slipped, and fell into the excavation, receiving some injuries, which are alleged to be severe and permanent in their character. He testified that he did not see the barrier on the north side of the trench nor the one at the east end. Impliedly, he seeks to excuse himself for not seeing the north barrier by stating that the bank was "higher than his head, and so obstructed his view, but there was nothing to prevent his seeing the barrier at the east end of the trench, had he looked.

The only reason which he gave for going on the bank was that at this point the earth appeared to have been trodden by others, who had preceded him. The fact that others, to gratify their cui’iosity, or for any motive, had walked upon this embankment, did not render the lad’s conduct less negligent. Before he reached the top of the bank he must have seen the barrier of planks and barrels on the north side, which, with the width of the opening, five to eight feet,- made it dangerous to attempt to cross it. The fact that he slid into the trench, instead of back into the street, shows that he had passed the highest point of the bank, and was -on the side sloping towards the excavation. These facts were testified to by the plaintiff, and by'witnesses called in his behalf, and we think it is clear, too clear for discussion, that the boy negligently contributed to his own injury, and that the city is not liable for the damages sustained by him. The learned counsel for the-appellant cites many cases in which it has been held that it was error for the court to take the question of the defendant’s negligence, or of the plaintiff’s contributory negligence, from the jury. The citations might be multiplied indefinitely, but would have thrown little light on .this case; for every action arising out of alleged negligent conduct must be determined by its. own facts, under the well-settled general rules applicable to this class of actions. We are also referred to cases holding that it is the duty of municipal corporations to exercise due care to keep their streets in safe condition, but it is difficult to see how this rule aids the plaintiff ; for assuming that more should have been done than was done by the city to guard the trench, it is apparent that the plaintiff was warned of the danger, which he failed to heed, and that the injury was the result of his own carelessness. No ruling was made by the court against the plaintiff upon the admission or rejection of evidence, and the only exception taken was to the order dismissing the complaint. Judgment affirmed, with costs.

Van Brunt, P. J.,' O’Brien and Follbtt, JJ., concur.  