App. Div.] FOURTH DEPARTMENT, JUNE TERM, 1898. excavations, piles of materials and work in course of construction should “be so guarded both by night and day at the expense of the contractor as to effectually prevent accident," the contractor excavated the street to the depth of some nineteen feet, throwing the dirt and stones taken from the excavation upon the east sidewalk to a height of from seven to twelve feet, and thereby occupying, for a period of about two months, all the sidewalk at that point, except a space from a foot to eighteen inches wide next to the lot of an abutting owner, upon which space, however, stones and dirt had fallen to such an extent that a plank about a foot wide and some twelve feet long had been placed over them. This plank, there was evidence tending to show, was the contractor's property, and had been there for some time under the observation of the contractor's workmen and superintendent. sus In an action brought against the contractor to recover damages for injuries su tained by an elderly woman, who, in walking upon this plank, slipped and fell in consequence, as alleged, of the existence of loose stones under the plank, which rendered it unsteady, there was evidence tending to show that but one end of the plank lay upon the sidewalk proper, the rest of it being upon the premises of the abutting owner, which were muddy and wet, and that the plank appeared to be safe to walk upon. Held, that a case was presented for the consideration of the jury as to the defendant's negligence, and also as to whether the plaintiff was guilty of contributory negligence; That the defendant's only justification for entering upon the street at all was under the terms of the contract by which he was required to do the work in such a manner as to effectually prevent accident," and that for an accident happening through his negligence the contract afforded him no protection. MOTION by the plaintiff, Dora Schubert, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance, upon a nonsuit granted by the court after a trial at the Monroe Trial Term. This action was commenced on the 8th of April, 1897, to recover damages for an injury to the plaintiff resulting from a fall upon a sidewalk on Rowley street, in the city of Rochester, on the 11th day of March, 1897. The complaint alleged that the defendant had unlawfully obstructed the sidewalk upon that street, placing large piles of dirt and stones thereon, almost covering the same, and had further obstructed it with boards and planks, creating a nuisance on the sidewalk, and carelessly and negligently making the same dangerous for travelers, and that the plaintiff, lawfully passing along said street and sidewalk with due care, and without negligence on her part, was injured in consequence of said nuisance and the negligence of the defendant. FOURTH DEPARTMENT, JUNE TERM, 1898. [Vol. 31. The defendant answered, admitting that the plaintiff fell on the said street on the 11th of March, 1897, and denying other allegations in the complaint, and alleging that he was lawfully engaged in constructing a sewer in the street under a contract with the city of Rochester, and that the plaintiff had been guilty of contributory negligence. The case was tried at the Monroe Trial Term on the 5th of October, 1897, and resulted in the plaintiff's being nonsuited, and the plaintiff's exceptions to such nonsuit and other exceptions upon the trial were directed by the court to be heard in the first instance by the Appellate Division of this court, and that defendant's proceedings be stayed in the action until the determination by the Appellate Division of such questions. Nelson E. Spencer, for the plaintiff. James Breck Perkins, for the defendant. WARD, J.: The defendant had a contract with the city of Rochester to construct a sewer along and under Rowley and Harvard streets in the city of Rochester. The contract was entered into December 26, 1896, and was in writing, and after specifying the work and its details, provided that the defendant should "take such precaution as may be necessary to guard all public and private property and persons from injury, and the party of the first part hereby covenants and agrees to indemnify and save harmless the party of the second part (the city) from all claims, costs, expenses and liabilities accruing in consequence of any negligence, imputed negligence or improper act on the part of the party of the first part, either from not properly guarding and keeping guarded the work in progress and the adjacent property and persons lawfully using the street, whereby injury to property or persons is caused during the proseention of such work from the time of its commencement up to the time it is fully completed and accepted by the party of the second part. * * * "During the progress of any and all of the work contemplated the contractor will be required to prohibit all persons from riding or driving on any portion of the sidewalk on either side of the street App. Div.] FOURTH DEPARTMENT, JUNE TERM, 1898. after the excavation for the proposed sewer has been commenced. The contractor will be held responsible for all damages arising from the use of said sidewalk for said purpose and the amount of said damages will be estimated and deducted from the final estimate due said contractor. To prevent the use of any sidewalk for public traffic of any kind other than pedestrians, the contractor shall effectually guard such portion of the street with barriers sufficiently strong to afford the necessary protection and at his own expense. "All excavations, piles of materials and work in course of construction shall be so guarded both by night and day at the expense of the contractor as to effectually prevent accident.” Early in January, 1897, the defendant entered upon Rowley street, which is a street about fifty feet in width, excavated for a sewer about five feet wide and in some places nineteen feet deep, and threw dirt and stones taken from the excavation upon the east sidewalk in Rowley street - which was a stone sidewalk from four to five feet wide — thus occupying all of the sidewalk at the point of the accident, and for some distance each side of that point with dirt and stones to a height variously stated by the witnesses of from seven to twelve feet, leaving but from a foot to eighteen inches of the sidewalk next to the abutting owner, upon which had fallen stones and dirt to such an extent that a plank about a foot wide and about twelve feet long had been placed over these stones at the place of the accident. This plank was placed opposite the premises and residence of a Mr. Braman, whose house was a three-story house used as a flat, fronting upon the sidewalk forty or fifty feet and set back about ten feet from the east side of the sidewalk, the space between the house and sidewalk being a grass plat which, from the operations of opening the sewer, had become tramped and muddied, and when the ground had thawed, ankle deep, as one witness expresses it; so that the only way for pedestrians to pass that point with any apparent safety and without getting into the mud and wet east of the sidewalk was to walk upon this plank, which was done by the people generally who passed that way. At the time of the accident this situation had existed fo, about two months. The plaintiff, an elderly lady, who supported herself by going out and doing work for such people as employed her, found it necessary to pass along this walk, and when she was apon FOURTH DEPARTMENT, JUNE TERM, 1898. [Vol. 31. the plank she slipped from the board and fell down upon the sidewalk and was seriously injured. The fall was in consequence of the loose stones under the plank which caused it to move and throw the plaintiff. There was evidence tending to show that but one end of the plank lay upon the sidewalk proper, the rest of the plank being a little east of it. Witnesses testified that the plank appeared as if it was safe to walk upon as pedestrians passed along, and the plaintiff testified that she thought it would be safe to pass over it, and it appeared from other testimony that if she had gone in upon the premises of Braman instead of walking upon the plank she would have been compelled to have walked in the mud and wet. The defendant had boards and plank in the vicinity, and this was one of them. One witness testified to seeing some workmen, prior to the accident, adjusting the plank with his feet. Another witness testified that, on the morning of the accident, some of the workmen were working at the corner of Rowley and Harvard street, and that there had been workmen around there prior to that. Another witness testified that she saw a workman handling these boards which were used on the sidewalk at the side of the dirt pile directly after the accident. The defendant's superintendent, who had charge of the work, testified that this was one of the boards that belonged to the defendant; that he had seen the board there before and after the accident; that it might have been there a week; that he saw it every day and left it there, but he denied that it was put there by his directions, or defendant's, as far as he knew, and claimed that the owner of the house (Braman) told him that he (Braman) had put it there, which Mr. Braman denied. Upon motions of this character the evidence must be stated as favorably to the plaintiff as the facts will fairly warrant, or, as some cases put it, “assuming that all the testimony of the plaintiff is true." The foregoing statement presents a case which, we think, entitled the plaintiff to go to the jury upon the issues in the case. The defendant's only justification for entering upon the street at all, and placing and keeping it in the dangerous condition disclosed by the evidence, was his authority from the city to construct the sewer; but in the exercise of that authority, as will be seen from the provisions of the contract, he was required to do the work in such a manner as to make the sidewalk safe for pedestrians, and that App. Div.] FOURTH DEPARTMENT, JUNE TERM, 1898. "All excavations, piles of materials and work in course of construction shall be so guarded both by night and day, at the expense of the contractor, as to effectually prevent accident." Unless he exercised the caution and care prescribed in his contract, if accident resulted to pedestrians in consequence of the defendant's negligence, the contract afforded him no protection. Leaving the sidewalk and street in this unsafe and unguarded condition for a period of two months, the jury may well have found was gross negligence on the part of the defendant. He knew that the sidewalk was being constantly used by persons who were rightfully there; he knew the obligations of his contract and the duties he owed to the community, whose necessities or interests required them to pass that way, and when he confined the pedestrians between a muddy and wet place on the one side and a vast pile of stone and dirt on the other, and permitted only a plank to walk upon, he certainly should have had that plank secure and safe and not left it in a condition so dangerous to the persons using it. But it is urged by the learned counsel for the defendant that it did not appear that this plank was put in this position by the defendant or through his agency and that, therefore, he should escape liability. The evidence we have referred to upon that subject was sufficient to carry that question to the jury; the plank was the defendant's property; it was used in connection with the work; it was there for some time under the observation of the defendant's workmen and superintendent; it was the duty of the defendant to have a plank or some other means there to be used by the public, and the presumption may well be indulged in that the defendant put the plank there or knew of its being there and suffered it to remain; placing it there or suffering it to remain there, he should have guarded it to prevent accident. In Gulliver v. Blauvelt (14 App. Div. 523), where an injury was caused to a riding horse by his stumbling over a chain by which a cow on one side of the highway was fastened to a stake, it was held that the cow being the property of the defendant, it might be presumed that she was placed in the highway for his benefit and on his account; and that, notwithstanding a denial of two disinterested witnesses that the defendant was responsible for the cow being thus fastened in the highway, the question was for the jury. (And see Springer v. Schnitzler, 122 N. Y. 646; Norris v. Kohler, 41 id. 42.) |