
    MARY GALVIN, as Administratrix, Appellant, v. THE MAYOR, &c. of NEW YORK, Respondents.
    
      Negligence.
    
    In this case the judgment was affirmed because it did not appear that the accident complained of was to be attributed solely to the negligence of the defendants. There was no proof as to the way in which the accident happened, and the jury could not have properly inferred from the evidence that the deceased was free from contributory negligence. The views of the trial judge were held to be correct, and he held “ That to sustain a recovery, the negligence complained of must have been the primary cause of the injury, and in this case the injury did not result from the condition or fastening of this grating, but from the manner in which it was used. If there was negligence in its use, from the position in which it was placed by the co-servant of the deceased, it was not the general negligence of the city.'”
    Before Sedgwick, Ch. J., Teuax and Dugro, JJ.
    
      Decided March 14, 1887.
    Appeal by plaintiff from judgment entered on a dismissal of the complaint before a jury.
    The action was for damages from negligence.
    
      John C. Shaw, attorney, and E. J. Myers of counsel for appellant.
    
      
      E. Henry Lacombe, and David J. Dean, for respondents.
   Opinion of the Trial Judge.—Freedman, J.

To be actionable the negligence complained of must be shown to have been the primary cause of the injury complained of. The injury in this case resulted not from the general condition or the want of fastening of this grating, but from the manner in which it was used. The use that was made of it was made by John Purcell, who came there ahead of Galvin and who, with some others raised it. If it was as dangerous as the learned counsel for the plaintiff claims, to allow it to stand almost perpendicular and without any fastening, then it was John Purcell who put it in that dangerous condition, and the danger was open, notorious, and patent to all who had eyes to see. If, therefore, there was negligence in that, it was the negligence of the co-servant of the deceased which was the primary cause of the injury, and not the general negligence of the city.

On the other hand, it also appears that the deceased had been warned several times against this very grating. Such danger was open, notorious, and he had express warning, which was proven by a witness introduced by the plaintiff and, introduced as a witness, entitled to belief. As the deceased had express warning, and the danger was open and notorious to him, if he did look—and it must presumed that he did look—it was contributory negligence for' him to go down that slide without first taking means to fasten it. He. might have pressed a shovel, which he must have had, against it. He might have fastened it with a rope, or in a variety of ways; or he might have stayed out of that hole altogether.

The complaint must be dismissed.

Per Curiam.  