
    George J. Albert, as Administrator, etc., of John Albert, Deceased, Respondent, v. The City of New York, Appellant, Impleaded with Alger C. Gildersleeve, Defendant.
    
      Negligence —boy killed by falling from a sea wall in process of construction by a city contractor — duty of the municipality—contributory negligence.
    
    In an action brought against the city of New York to recover damages resulting from the death of the plaintiS’s intestate, it appeared that the city had entered into a contract for the construction of an extension of East River Park and for ■ the erection of a sea wall along the easterly front of such extension; that at the time the accident happened the work was in an uncompleted state, the surface of the extension not having been graded to the level of the top of the sea wall, and only a portion of the iron railing which was intended to guard the sea wall having been placed in position. Barricades separated the extension from the completed portions of the park and notices were placed at each entrance to the extension notifying the public that no trespassing would be allowed thereon. Watchmen employed by the contractor excluded, so far as they were able, all persons from the extension, but there was testimony tending to show that children from time to time played on the extension.
    It further appeared that on the day of the accident the deceased, an intelligent boy, nearly twelve years of age, was playing with other boys on the unfinished ■ extension, and that, while standing near that portion of the sea wall which was not guarded by a railing, he began to throw stones from a sling into the river; that, while standing about two feet from the wall, he made an effort to throw a stone, when the'sling slipped from his hand; that he jumped forward to grab the cord and either tripped over a water pipe which had been laid on the inside of the wall or stumbled on the wall and fell over the same, striking upon some rocks below and receiving injuries from which he died. The day was bright and sunny and the deceased was in full possession of his faculties, had good eyesight, and was familiar with the place and had been directed by his father to keep away from the sea wall.
    
      Held, that the deceased was a mere trespasser or, at the most, a licensee in being upon the premises;
    That it could not be said that the city had extended an implied invitation to the deceased to go upon the premises; that, consequently, as the dangers of the situation were open, apparent and visible, and the city had not been guilty of any wanton act from which the injuries resulted, it was not liable therefor;
    That the city would not be liable even if it should be assumed that it had extended an implied invitation to the deceased to go upon the premises, as it had taken all the precautions to protect the place that a reasonably prudent person could be called upon to exercise;
    That the deceased, who was concededly sui juris, had, as a matter of law, been guilty of contributory negligence.
    
      Appeal by the defendant, The City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 20th day of March, 1902, upon the verdict of a jury for $3,000, and also from an order entered in said clerk’s office on .the 24th day of March, 1902, denying said defendant’s motion for a new trial ■ made upon the minutes.
    
      Theodore Gonnoly, for the appellant.
    
      Tlieronvmus A. Herold, for the respondent.
   Hatch, J.:

By this action damages are sought to be recovered against the city of Hew York and one Gildersleeve, a contractor, for negligence resulting in. the death of plaintiff’s intestate. Upon the trial the complaint was dismissed as to- the contractor, and as no appeal was taken from that determination by the plaintiff, its correctness cannot be questioned upon this appeal.

By virtue of the provisions of chapter 320 of the Laws of 1887 authority is conferred upon the city of Hew York to select, locate and lay out public parks south of One Hundred and Fifty-fifth street, and by the provisions of section 9 of such act the department of public parks of the said city is vested and charged with the care, custody and construction of the same after they shall have been acquired, and is authorized and empowered to construct said parks and to erect and furnish therein for public purposes, and for the comfort, health and instruction of the people, such and so many buildings as the said department, with the concurrence of the board of estimate and apportionment, shall determine to be necessary and expedient. Pursuant to the provisions of this act, a contract was made by the said city, acting through the department of public parks, with the defendant Gildersleeve for the extension of East River Park. and for the work of regulating and grading the same, and. for the erection of a sea wall along the easterly front of the extension of East River Park from Eighty-sixth street to near the northerly line of Eighty-ninth street. The agreement was entered into betwéen the respective parties thereto on the 20th day of December, 1900, and immediately thereafter Gildersleeve entered upon the performance of the same and continued to be employed thereon down to the date of the injury complained of in this action and thereafter. The extension, when completed, was to form a part of the East River Park, which then had an existence, was opened and used by the public. This extension, at the time of the accident, consisted of a dirt space about forty-four feet wide and graded about a foot below the sea wall, extending from Eighty-sixth to Eighty-ninth streets. The completed portion of the park was upon higher ground, and except for the walks and paths was covered with grass. A steep bank ran down from the level part of the park to where it joined the extension, and there was a flight of stone steps at about the center of the completed park leading to it. The completed portion was separated from the extension by a fence of three bars, running its whole length, and the approach by the stone steps was barricaded by seats placed in front. In order that a person should get upon the extension from the park he had to climb over these obstacles. There was also an entrance at each end of the extension from Eighty-sixth and Eighty-ninth streets. Signs were placed at these entrances reading: “Danger, no trespassing allowed on the site of this work. A. 0. Grildersleeve, contractor.”

By virtue of 'the specifications attached to the contract and made a part thereof, the contractor became responsible for the general care, control and good order in the performance of the work, and was required to keep watchmen on the work night and day, and place proper guards around the same for the prevention of acci- . dents, and at night to put up and keep sufficient lights. The contractor had placed a two-incli pipe against and on the inside of these walls for the purpose of conveying water necessary in the prosecution of the work. The sea wall was two feet and two inches wide, and at the point of the accident was about ten inches above the dirt, and when completed was to be guarded by an iron railing. The latter had been partially placed in position but did not extend to the space where the accident happened. The extension was not opened to the public for any purpose; there was no driving nor travel thereon except by the teams of the contractor engaged in the prosecution of the work. Two watchmen were employed by the contractor, one during the day and the other at night, and these watchmen excluded from the extension^ so far as they were able, all persons and children during the whole period of time. There is negative testimony given by the plaintiff’s witnesses that they - never saw any watchmen upon the premises, and of boys called. by the plaintiff who testified that they were frequently there and were never driven off, but the testimony is undisputed that watchmen were employed and exercised their duties in excluding all persons improperly upon the premises. In addition, to this, the policemen whose beat extended to that locality also exercised supervision and control over the same and excluded people therefrom. At the' time of the accident the work was in an uncompleted state, the contractor was prosecuting it, and the public were excluded from it. It had not been accepted by the city and did not at the time.of the accident form . a part of the public park. The deceased, a bright intelligent boy of nearly twelve years of age, was playing with other boys on the unfinished extension, and while standing near to that portion of the sea wall which had no railing upon it, was engaged in throwing stones from a sling into the East river. While standing about two feet from the wall he made an effort to throw a stone, the sling slipped from his hand, and he jumped forward to grab the cord, and either tripped over the water pipe or, stumbling on the wall, fell over the same, striking upon some rocks below and receiving injuries from which he died. The day was one of bright sunshine, the deceased was in the full possession of his faculties, had good eyesight and was familiar with the place, as he had been there many times before. He had been directed by his father “ to keep away from the sea wall while the men were working any place there was danger. I wanted him to stay away.” All of these facts were substantially undisputed, and measuring the obligation and duty which the city owed to the deceased, and the obligation which rested upon the deceased to exercise care and prudence cornmen-. surate with his age, we think that the plaintiff failed to establish a cause of action.

The general rules applicable to this situation are reasonably well settled. If the city was under no obligation to the deceased to make the extension safe or to keep it in any particular condition, then the deceased is to be regarded as a trespasser, dr at the most a bare licensee, and the only obligation resting upon the city would be to refrain from any wanton or willful act producing injury. (Walsh v. F. R. R. Co., 145 N. Y. 301.) It is clear that there was no express invitation upon the part of the city for the deceased to go upon these premises. The invitation must, therefore, be raised by implication, if it exist at all. Assuming, in view of the fact that children had from time to time gone upon this extension, that the city had notice of such fact or was chargeable therewith, then the obligation resting upon the city would be the exercise of reasonable care in so far protecting the premises that dangerous obstructions or conditions should not exist, from which injury might result. (Collett v. Mayor, 51 App. Div. 394; O'Rourke v. Mayor, 17 id. 349.) Under the circumstances of this case, we are of the opinion that the deceased was a mere trespasser, or at the most a licensee, in being upon the premises.- The condition was .perfectly apparent. Barricades separated the extension from the completed portions of the park; notices at either end informed the public that the park was not opened for purposes of use; watchmen and policemen excluded people therefrom, while the condition of the premises themselves clearly indicated to the most casual observation that the place was in process of construction, and was not expected to be used by the general public. Under such conditions it must have been apparent to the most immature person who was sui juris that the public or individuals disconnected from the work were not expected to go or be thereon; and under such circumstances no -duty or obligation was imposed upon the city beyond that which it discharged. (McAlpin v. Powell, 70 N. Y. 126.) There was nothing in the condition from which it could be said that in anything which the city did it enticed or decoyed children to come upon the premises by anything kept or maintained thereon. In this respect the case is essentially weaker than Walsh v. F. R.R. Co. (supra).

Applying the above rule to this case, it is clear that the city was not guilty of any wanton act from which the injury resulted. It took no affirmative action, it concealed nothing and the dangers of the situation were open, apparent and visible. There was nothing, therefore, in the situation upon which the liability of the city could be predicated. If, however, we assume that there was an implied invitation to go upon the- premises, then we think- that the city did not fail in its obligation of the exercise of reasonable care. It was not bound at its peril tq have the railing run the whole length of the completed sea wall in order to relieve it from the obligation of exercising reasonable care. If there had been placed upon every foot of the sea wall notices of danger to be apprehended from going Upon it, or falling over it, it would not in the slightest have added to the open and visible danger created by the situation. The whole surrounding was perfectly .plain, and the precaution taken by the city to protect the place was all that a reasonably prudent person could be called upon to exercise. Under such circumstances no liability attaches within the rule laid down in the last above cited cases, and many others. (Clark v. Manchester, 62 N. H. 577; Blaisdell v. Portland, 39 Maine, 113; Beak v. Carter, 68 N. Y. 283; Roberton v. Mayor, 7 Misc. Rep. 645 ; affd. on appeal, 149 N. Y. 609.)

We are also of opinion that the deceased was guilty of contributory negligence as matter of law. He was concededly sui juris. The danger which confronted him was not only open and apparent, but he had been warned of the same by his father, and directed to stay away. He did not fall over the wall by reason of any hidden obstruction or of any latent defect. When the sling which he was using slipped from his hand he made a jump to recover it, and by such act precipitated himself over the wall. It was said in Rartfield v. Roper (21 Wend. 620), in speaking of an infant of tender years, when he complains of wrongs to himself, thq defendant has a right to insist that he should not have been the heedless instrument of his own injury.” And this language received the sanction of the Court of Appeals in Wendell v. N. Y. G. & H. R. R. R. Co. (91 N. Y. 420) and in principle in many other cases. (Williams v. Village of Port Leyden, 62 App. Div. 490; Whalen v. Citizens’ Gaslight Co., 151 N. Y. 70; Strutt v. Brooklyn & R. B. R. R. Co., 18 App. Div. 134; Thompson v. B. R. Co., 145 N. Y. 196.)

Had the deceased been told immediately prior to the accident that if he got upon the wall or jumped upon it he was in danger of falling over upon the rocks below, his knowledge of the dangers which confronted him would not have been increased. The occasion of his injury was a heedless attempt upon his part to recover the sling, and, being such, he clearly contributed to his death. This defeats a recovery.

It follows that the judgment and order should be reversed and a new trial granted, with costs to the appellant to abide the event.

Van Brunt, P. J., Ingraham and O’Brien, JJ., concurred; Laughlin, J., concurred on first ground.

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