
    Jacob Ruppert, Respondent, v. The City of New York and Northeastern Construction Company, Appellants.
    (Supreme Court, Appellate Term, First Department,
    May, 1915.)
    Damages — when no recovery justified — negligence — automobiles — insufficiency of evidence.
    Where plaintiff’s automobile truck weighing from five to eleven tons while running on a down grade encountered a hole or depression in a roadway twenty-five to thirty-five feet wide, swerved and went through a fence barrier into an excavation being made for a subway, and it appears that the chauffeur was fully aware of the excavation and of the work which had been going on for months, and there was no basis for a finding that the barrier was not sufficient for all reasonable purposes, no recovery is justified against the contractor making the excavation.
    
      Where one of plaintiff’s witnesses estimated the hole in the roadway to be six inches deep and though he testified that it had existed for about five weeks and got deeper and bigger refused to express an opinion as to the depth or condition of the hole two days before the accident, and the chauffeur testified that while passing the roadway two days previous to the accident he did not notice the hole, the evidence is insufficient to charge the city with notice and render it liable.
    Appeal by defendants from a judgment of the Municipal Court of the city of New York, borough of Manhattan, sixth district, entered upon the verdict of a jury.
    Walter G. Evans (Walter R. Kuhn, of counsel), for appellant construction company.
    Frank L. Polk, corporation counsel (Charles J. Nehrbas and Terence Farley, of counsel), for appellant city of New York.
    Ashbel P. Fitch, Mott & Grant (Ashbel P. Fitch, of counsel), for respondent.
   Bijur, J.

This action is brought for damages to an electric automobile truck belonging to plaintiff. While proceeding over Manhattan bridge in the direction of Brooklyn, and after leaving the asphalted roadway of the bridge proper, the chauffeur in charge of the truck claims that on the down grade on what we might call the approach ” he encountered a hole or depression in the roadway; that he thereupon lost control of the machine so that it swerved over twelve feet to the left. At this- point defendant construction company was engaged in making an excavation for the new subway; and the truck went through a barrier of planks there erected and was precipitated into the excavation.

I think that the complaint should have been dismissed at the close of the plaintiff’s case on the appropriate motion made by. both defendants, after the denial of which defendants rested.

The accident oeurred' about six-ten- o’clock in the morning of a day late in November. Plaintiff’s chief witness claims to have been able to observe movements of the truck over 300 feet distant. Moreover, regardless of the extent of the daylight, there is positive evidence of plaintiff’s chauffeur that he was fully aware of the existence of th‘e excavation and the work going on there for months. While the one witness said that he did not see the barrier there (which is quite natural since the automobile admittedly broke it down before he arrived) the chauffeur testifies to its existence. Plaintiff offered no evidence as to its construction ; consequently there is no basis for a finding that it was not sufficient for all reasonable purposes. Apart from the fact that the roadway at this point was admittedly from 25 to 35 feet in width, it is quite manifest that no liability on the part of the defendant can be predicated on the mere demolition of a barrier by an automobile weighing, as testified to, from five to eleven tons running on a down grade. Although this proposition appears to be too self-evident to warrant citation of authorities, McDonald v. Degnon-McLean Contracting Co., 124 App. Div. 824, 828, and City of Buffalo v. Holloway, 7 N. Y. 493, 497, may be noted as indicating that a contractor, under circumstances similar to those in the case at bar, cannot be expected “ to erect such a barrier * * * as to make such an accident well nigh impossible, ’ ’ and that he is not ‘1 in the position of an insurer against possible accidents.”

In respect of the liability of the city, while one of plaintiff’s witnesses estimated the hole to be six inches in depth, he said further that the depression had existed there for about five weeks ‘1 and got deeper and bigger from wear and tear.” He repeatedly refused to express an opinion as to the depth or condition of the hole even two days before the accident. The chauffeur, who had passed over the roadway two days before, said that he did not notice the hole there then. The mere circumstance of a depression in the roadway during some weeks is not sufficient to charge the city with notice, and there is a complete absence of evidence of the existence of the hole for any appreciable length of time as one of sufficient dimensions to require attention. Lalor v. City of New York, 208 N. Y. 431. See also Faber v. City of New York, 213 N. Y. 411.

Guy and Pendleton, JJ., concur.

Judgment reversed and new trial granted, with costs to appellant to abide event.  