
    James Kelly, an infant, etc., Respondent, v. Hudson Companies, Appellant.
    (Supreme Court, Appellate Term,
    January, 1910.)
    Megligence — Acts or omissions constituting negligence — Use of land, buildings and other structures — Guarding and warning against dangers'.
    Where a grating over a cellar opening on defendant’s premises, which has been left unfastened for a time to permit the removal of goods from the cellar, gives way with a child, who, with his brother, is playing upon the sidewalk and who is thereby precipitated into the cellar and injured, and it appears that the defendant’s foreman knew the children were playing about the premises and ordered them away several times but did not warn them of danger, enough appears to charge defendant with want of proper care to protect the child from hidden danger and to sustain a verdict in its favor for the injuries so received.
    Appeal by the defendant from a judgment of the City Court of the city of Hew York, entered upon a verdict in favor of the plaintiff and from an order denying a motion for a new trial.
    Thatcher, Simpson & Bartlett (Thomas D; Thatcher, of counsel), for appellant.
    Charles Steckler (Levin L. Brown, of counsel), for respondent.
   Lehman, J.

The plaintiff, a child two years old, was playing on the street with his brother. He leaned against a hanging iron grating which was suspended from the top> of an opening in the defendant’s premises abutting on the street. The grating apparently gave way and the boy fell through the opening into the cellar. The defendant claims that this opening was only twenty-eight inches high; that the grating weighed a hundred pounds and was usually securely fastened, and was unfastened that morning five hours before the accident only to allow the removal of heavy goods from the cellar. The defendant’s foreman knew that the children were playing about the premises and claims that he told them several times to go away, but does not claim that he warned them of any danger. Hpon these facts the jury brought in a verdict for the plaintiff, and the defendant appeals on the ground that no negligence on the part of the defendant has been shown. While the plaintiff’s witnesses state that the grating was four feet high and deny that any goods were being moved at the time, I think that the defendant’s testimony on these points was more accurate and more credible; ■ and, if that testimony, if believed, is sufficient to negative as a matter of law the alleged negligence of the defendant, then the defendant might argue that the verdict is against the weight of evidence. It seems to me, however, that even from the defendant’s testimony the jury might well draw the inference that the defendant has not complied with , its duty of using reasonable care to protect a child, lawfully using the street, from injury. “ It is not unlawful, wrongful or negligent for children on the sidewalk to play ” (McGarry v. Loomis, 63 N. Y. 104, 108) ; and the plaintiff was entitled to the same protection as if he were using it for the ordinary purposes of travel. McGuire v. Spence, 91 N. Y. 303. That duty does not impose upon the abutting property owner the burden of making his premises a safe playground for children. He is not liable, for instance, for failure to place a railing or gate across a stairway lawfully erected to his cellar. White v. Daniels, 39 App. Div. 668; Rothlein v. Stajer, 88 N. Y. Supp. 921. Where howr ever the defendant knew or might reasonably anticipate that children would play near his premises, he must exercise such care as would at least protect them from hidden danger. In the case of Cleary v. Blake, 14 App. Div. 602¡, a child fell through a door that had been apparently closed but not securely fastened. The court held that, since the defendant had no reason to anticipate that a boy would lean against the door, he was under no duty to see that it was securely fastened; but if they (his employees) “could reasonably have anticipated that a boy would stop and lean or press against this door, common prudence required that they should see to it that the door was not left so slightly fastened as readily to. open and permit one to he thrown to the cellar floor which was several feet below the level of the alley.”

It seems to me that this is exactly the situation presented by this case. The opening was only twenty-eight inches high; and the defendant could not have anticipated that any person except a small child would fall through, even if he leaned against it. Its foreman however lmew that these children played there, and, though he claims that he sent them off, they deny this; and in any event the foreman knew that they kept returning. Common prudence- therefore required him to warn them of the danger'to,-..which this small boy was exposed, or required him "to guaid' against the danger by securely fastening the grating. He had no right to leave it, in a position where a child might lean against it, so insecurely fastened that it gave way and precipitated the child into the cellar.

The appellant also claims that the damages are excessive. Ooncedely they are excessive only if the testimony of the plaintiff’s mother is to be disregarded. Her story is not so improbable that we are forced to believe it untrue. The jury saw her and the child and could judge of its truth better than we.

The judgment should be affirmed, with costs.

Giegerich and Dayton, JJ., concur.

Judgment affirmed.  