
    William J. Bell, Plaintiff, v. The City of New York and Others, Defendants.
    First Department,
    June 15, 1906.
    Negligence — injury by fall from bridge over excavation in street — dismissal of complaint sustained.
    The plaintiff while walking on a city street dropped a piece of money which rolled out on a temporary bridge erected not as a thoroughfare but to facilitate the removal of earth excavated from a subway. The plaintiff went upon the bridge to recover the rolling coin and fell into the excavation. The entrance to the bridge was not guarded by barriers, but it was broad daylight and there was no defect in the bridge save that som'e planks were shorter than others.
    
      Held, that there was no negligence on the part of the city or the contractor constructing the subway on which to base a recovery;
    That the accident was caused by the contributory negligence of the plaintiff;
    That the defendants were not bound to anticipate that an accident of this kind might happen.
    Motion by the plaintiff, William J. Bell, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance, upon the dismissal of the complaint after a trial at the Yew York Trial Term in October, 1905.
    
      John Vernou Bouvier, Jr., for the plaintiff.
    
      Terence Farley, for the defendant City of New York.
    
      Courtlandt Nicoll, for the defendant McDonald.
    
      James F. Donnelly, for the defendant Degnon-McLean Contracting Company.
   McLaughlin, J.:

About five-thirty o’clock in the afternoon of the 2d of August, 1902, the plaintiff sustained very serious injuries by falling from a temporary bridge erected over an excavation for the subway tunnel just off Centre street in City Hall Park. He brought this action to recover damages for his injuries, upon the ground that the same were caused by the defendant’s negligence. At the close of plaintiff’s case the complaint was dismissed as to the city and McDonald, and at the close of the whole case it was dismissed as to the Degnon-Mc'Lean Contracting Company, and the plaintiff has appealed.

I am of the opinion that the contplaint was properly dismissed as to all of the defendants. At the time in question the DegnonMcLean Contracting Company was excavating in City Hall Park, a ljacent to Centre street — work made necessary in the construction of the subway tunnel. The excavation was some thirty feet in depth, and extending from Centre street into it was a bridge constructed of planks laid upon stringers. The bridge, which was upwards of thirty feet in length and ten feet in width, was used by trucks backing upon it from the street fur the purpose of carting away the earth and rock excavated. Along Centre street, adjacent to the excavation, except at the point where the bridge was, a barrier or fence had been erected. The plaintiff and two companions — McDonald and Green — immediately preceding the accident, were traveling south on Centre street', McDonald being some twelve feet ahead of the plaintiff. As he reached the temporary bridge he walked upon it, but after going about six feet, saw that it only extended into the excavation, and he then retraced his steps to the street and continued south. The plaintiff, when he reached the bridge, and just as he stepped upon it or immediately prior thereto, dropped a coin which rolled down the bridge, and in his effort to recover it he lost his balance and fell into,the excavation.

There certainly was no negligence on the part of the city or McDonald. The city was authorized by statute to build the subway and to enter into a contract for that purpose, and McDonald had a right to sublet this portion of the work (Haefelin v. McDonald, 96 App. Div. 213), so that if there was any negligence at all it was the negligence of the sub-contractor, and as to it I do not think there was any evidence which would have justified a finding of negligence. The bridge was a necessary part of the work. There was no other way by which the earth and rock could be taken out, so far as appears. Therefore, if there was any negligence it was in omitting to have a barrier at the entrance, or to have some one stationed at this point to warn travelers who were about to go upon it. But the work could not have been prosecuted if a barrier had been put across the entrance, because trucks were continually going in and out, and had a person been stationed to warn the plaintiff it would not have prevented the accident. He saw the bridge and deliberately went upon it, not for the purpose of crossing the park in this way, but to recover a coin which he had dropped. He was examined before trial, and in answer to a question as to how the accident happened said that as he was going by the bridge he dropped a quarter; that it rolled upon the bridge; that he followed it, and in reaching for it fell into the excavation. On recross-examination at the trial he testified : I had not gone on the roadway yet when I dropped the quarter. As I dropped the quarter I followed it. I was traveling south when I dropped the quarter. I traveled west afterward, and I was facing north when I fell. I had not contemplated using that runway to walk across the excavation before I dropped the quarter.” This statement, however, was subsequently qualified to some extent by his saying that he dropped the quarter about the time he stepped upon the bridge.

But considering the plaintiff’s testimony in the most favorable light, and giving him the benefit of every inference that can fairly be drawn from it, it is not sufficient, in my opinion, to sustain a finding that the defendants were negligent or the jilaintiff himself free from negligence. The accident occurred, as already indicated,' in broad daylight. The bridge was ten feet or more in width, and had the plaintiff been exercising the care which he was obligated to, the accident could not have occurred. There was no defect in the bridge, and indeed the only claim of a defect is that some planks were shorter than others, and that this was the cause of plaintiff’s losing his balance and falling into the excavation. But there was no obligation resting upon the defendants, or any of them, in constructing the bridge to have the planks all of the same length, nor were they bound to anticipate, in the exercise of reasonable care, that an accid.ent of this kind could possibly happen.

The exceptions must, therefore, be overruled and the motion for a new trial denied, with costs.

O’Brien, P. J., Patterson, Ingraham and Houghton, JJ., concurred.

Exceptions overruled and motion for new tidal denied, with costs. Settle order on notice.  