
    Charles W. Morgan, Respondent, v. The Village of Penn Yan, Appellant.
    
      Negligence — injury from driving on a dark night into apile of dirt upon a village street — notice of its existence necessary to establish liability on the part of the village, which had, authorized the installation of a steam heating system which occasioned it — contributory negligence as matter of law.
    
    An action was brought against a village to recover damages for personal injuries-sustained by the plaintiff, while driving along a village street upon a dark night, in consequence of his wagon striking an alleged unguarded pile of earth, thrown upon the street from-an excavation made by persons engaged in installing a steam heating system under a license from the village, which license provided that they should “ during the; construction of such system of steam supply, properly guard and protect all openings and trenches, and be responsible for all damages to individuals. * * * All the work pertaining to the excavating and filling of said trenches,' and the replacing of the walks and highways, shall be done under the direction and supervision of the street commissioner of the said village, and said ;Birkett (the licensee), his successors anct assigns, shall pay him for such supervision at the rate of two dollars per day for every day actually spent at such) work.”
    
      Held, that the defendant was entitled tío have the jury charged that “in.order to make the defendant liable, it was necessary for the evidence to show affirmatively and by a preponderance that the defendant, by its officers, had notice-that no lights, barrier or other warning existed at the place of the accident at the time of the accident, and for a sufficient time before, to enable it to provide such,” and also that “the licensee of the defendant, Birkett and others, liavinghad charge of the work of excavating and filling the ditches, the defendant is not responsible to the plaintiff for the manner of their work thereon, nor for the negligence in not barricading ;or lighting red lamps at the timé of the-plaintiff’s injury, unless the defendant had actual knowledge, personal or implied, that the dirt and ditch wefe not sufficiently guarded at the time of the occurrence.” ¡
    In such a case, proof that on the occasion of the- accident the plaintiff, although aware of the existence of the piles - of earth and of the fact that he was-approaching them, drove at a “ trot” without, so far as appears, giving the piles of earth a thought, establishes his contributory negligence so conclusively that it is error for the court to submit that question to the jury.
    Appeal by the defendant, The Village of Penn Yan, from a judgment of the Supreme. Court in favor of the plaintiff, entered, in the office of the clerk of the county of Yates on the 1st day of February, 1899, upon the verdict of a jury for $775, and also from an order entered in said clerk’s office on the 1st day of February? 1899, denying the defendant’s motion for a new trial made upon the minutes.
    
      John Gillette, for the appellant.
    
      M. A. Jewry, for the respondent.
   Nash, J.:

Action for alleged negligence of the defendant.

The village of Penn Yan gave to Clarence T. Birkett and others a franchise for a system of steam heating for the use of its citizens. The board of trustees, hy resolution, gave their consent to the use of the streets of the village for the purpose of installing the system upon the following conditions, among others: “ Said Clarence T. Birkett * * * shall, during the construction of such system of steam supply,.properly guard and protect all openings and trenches, and be responsible for all damages to individuals. * * * All the work pertaining to the excavating and filling of said trenches, and the replacing of the walks and highways, shall be done under the direction and supervision of the street commissioner of the said village, and said Birkett, his successors and assigns, shall pay him for such supervision at the rate of two dollars per day for every day actually spent at such work.”

In the progress of the work a ditch was opened on the west side of Main street, about eleven feet from the curb, some five feet in depth, and the earth thrown out and piled on the east side, leaving a passage in the street sufficient for two teams to meet and pass each other. At different points along the line, each one hundred feet apart, it was necesary to cut out a square hole much wider than the ditch, to receive an intake pipe and accommodate the needs of the system as planned ; and, hence, at such points larger and higher piles of dirt were deposited. These were at a height of about four feet, and extended out into the street further than the line of the general pile or ridge. The accident occurred hy reason of the plaintiff driving the wheels of his wagon against one of these piles of dirt.

It appears from the uncontradicted evidence that rules were adopted by the company putting in the steam-heating plant in respect to the safety of the public using the street during the perfonnance of the labor, and that the same were complied with in such manner that all precautions usually observed, and such as were necessary for such purpose, yere taken to guard and light the work at night, and the pile of dirt in question was so guarded and lighted. !

The accident occurred early" in! the' evening, but after dark, and there is evidence tending to show -that the lights were not put out on the evening of the accident upti-1 after dark, and after the accident occurred. I

The case was -submitted to the I jury upon the theory that it was the duty of the village to guard tile excavations and piles of -dirt in such manner as would not expose! the -traveling' public to unnecessary danger while using the streets, the same as if the excavations had been made by the village for its own purposes.

The defendant’s counsel requested the court to charge the jury that, “ in order to make the defendant liable, it was necessary for the evidence to show affirmatively -and by a preponderance that the defendant, byits officers, had .notice -that no lights, barrier or other warning existed at the place of the accident at the time of the accident, and for a sufficient time before, to enable it to provide such. The court declined such request ;to charge, -to which -ruling the defendant duly, excepted.”

The court was "also requested to charge that “the licensee of the defendant, Birkett and others, haying had charge of the work "of excavating and tilling the ditches, ¡the defendant is not responsible to the.plain tiff for the manner of their work thereon,-nor for the negligence in not barricading or lighting .red lamps at the time of the plaintiff’s injury, unless the defendant had actual knowledge, personal or - implied, that the -dirt and ditch were not sufficiently guarded at the time of the occuiTence. The court declined such request to charge, to which ruling Jlefendant duly excepted.”

This, we think, was error. The defendant was entitled to have the jury charged as requested.-

The case of McDermott v. City of Kingston (19 Hun, 198) is very much like this. The action was brought to recover damages for injuries sustained by the pla-i of his falling in the night into .a ntiff’s intestate in consequence ditch, excavated in one of the streets of the city of Kingston by a gas company, which-had been negligently left unguarded. By the charter of the city the common council had power to do what was done in this case by the trustees in their resolution granting the franchise, regulate and superintend the exercise of the laying of gas pipes, and to require any corporation or company laying such pipes to keep proper signal lights burning at night at all holes or ditches which may have been rendered dangerous to persons traveling in the streets or highways. Held, that to render the city liable for the injuries it must appear not only that the accident resulted from the negligent manner in which the excavation was made and left, but also that the city had notice, actual or constructive, thereof. The fact that an alderman of the city saw the excavation being made is not per se evidence that the city was guilty of negligence. The rules which govern the liability in such cases are stated by Board-man, J., as follows: “For any obstructions or defects created by the city for its own purposes in its streets or its sidewalks, whereby persons are injured, the city will be liable if the injury be due to the negligence of the city officials or employees. The same result follows if the work on the streets or sidewalks be done by others by the consent and under the supervision of the city authorities. * * * If a trespasser obstructs the ways of a city whereby an injury occurs to an individual, the city will not be liable except after notice, actual or constructive, and neglect to put .the street in good condition after such notice. * * * But if the work is done by the consent only of the city and not under it's immediate supers vision, the city will not be liable for the negligence of those doing the work, but only for its own negligence in not correcting the evil after notice, actual or constructive.”

Judge Boardman is supported by the authorities. In Masterton v. Village of Mount Vernon (58 N. Y. 391) it was held that, where the officers of a municipal corporation, in pursuance of a lawful authority, give permission to a lot owner to connect his lot with a sewer, such officers are required to exercise reasonable care to prevent injury, and for the omission thereof the corporation is liable ; but in the absence of any want of proper care upon the part of its officers it is not responsible for the negligence of those employed by the lot owner to do the work. In Turner v. City of Newburgh. (109 N. Y. 301), where the city was held liable for an injury sustained by reason of a defect in á sidewalk left by a contractor .whose work had not been accepted and a sufficient length of time had elapsed to charge the city with notice, the rule was recognized that,, where the unsafe condition is caused by some other than a municipal agency or instrumentality, negligence is not imputable until a sufficient time has elapsed to charge the municipal officers with notice. In Pettengill v. City of Yonkers (116 N. Y. 558, 563), cited by respondent’s counsel, the court -used this language, “the plaintiff, was entitled to recover by showing to the satisfaction of the jury either a dangerous obstruction created by the city and left unguarded, or an obstruction created by some third person and left unguarded by the city after notice of its existence.”

The work pertaining to the excavating and filling the trenches-required to be done under the direction and supervision of the street commissioner, did not give to the street commissioner charge of the physical part of the work ; that was under the dii'ection of and performed by Birkett and his employees. Supervision and direction of the work as it should affect the streets and sidewalks were all that were required of the street commissioner.

He assumed, as street commissioner, the duty of directing that the excavations be protected by barricades and lights. Assuming that this was part of his duty, there is no evidence of negligence on his-part, and his testimony is that he' faithfully performed his duty. The testimony of both plaintiff and defendant’s witnesses is to the effect that the lights were regularly put out. The evidence is conflicting only as to whether or not they were put out on the evening in question before the accident, ;

Under the circumstances of the case there was no opportunity for notice to the defendant of the negligent act of Birkett’s employee, if there was negligence, in not putting out the light on the evening of and before the accident..

We think, also, that it was error to submit to the jury the question as to whether or not the plaintiff’s negligence contributed to-the accident. He-lived on the same street. His testimony is : “ I had seen these different bunches or piles of dirt many a time ; I had seen those heaps and piles of dirt and knew just where they were for days, and knew where the ditch was for days. * * * I had walked by there during evenings. * * * On that night therewasn’t a light on the ditch; there wasn’t any in sight, and there was no electric light that night. I can’t recollect any other night when that was so. I am not prepared to say how it was other nights. I have seen them different nights in that position when I have gone along. * * * I drove up Main street, as I always do drive,, carefully. I drove on a trot; it was just an ordinary trot, just a-jog. It was pretty dark on the street after I passed all'the stores and got up into a dark neighborhood. Where these heaps of dirt, were, it was so dark I could not see. I didn’t see until I struck this pile. I didn’t stop anywhere to look before I struck the piles. When in the wagon, I was driving my horse with two hands and had both hands on the lines. I now have a recollection of the gait at which I was driving. This mare that I drove took a jog; it was a. jogging gait. It was a jog until the collision; I didn’t stop on a, walk. I knew I was coming to the place where these heaps of dirt were.”

The testimony of Miss Smalley, who was riding with him, is: “I started to ride from the store of McMath & Morgan to my home with Charles Morgan. As near as I can remember, I got into the buggy and rode with Mr. Morgan, and we drove up Main street. The first thing we knew,, we struck this pile of dirt, and he tried to-hold the lines and get straightened up, but he went out. * * *• The horse was going just in a natural gait; it. wasn’t going fast; it was going on a good trot. * * * We were talking. with each other as we came along the whole distance, and our horse was on a trot. It wasn’t going fast; it was going along as anybody’s horse-would, just an ordinary trot, an ordinary gait. It was not a little-bit faster than ordinary. There was not the least change in the manner of his driving from the street until he struck this pile of dirt; it was a steady drive. * * * I didn’t notice where the wheel struck. I didn’t look at it or think anything about it. I don’t know as I was thinking particularly about the street, and the-first idea I had of any danger at all was when I struck the heap of dirt. I suppose we were talking up to that time.”-

The plaintiff does not testify that he used any care whatever in driving along by the side'of the ridge and piles of earth which he knew were there, although it was very dark and the lights which he had .observed there evenings before were absent. He drove along on a good trot” in the passageway left for teams, narrow and dangerous as he knew, without so mticti, so far as the evidence shows, as giving these piles of earth a thought, until he struck one of them' and was overturned. This, it seems to us, within the well-settled rules applicable to .cases of this character, was such negligence as to preclude a recovery.

The judgment and order should be reversed .and a new trial ordered, with costs to the appellant 'to abide the event.

All concurred; Spring, J., in the result.

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