#### John P. McDonald, Respondent, *v.*Degnon-McLean Contracting Company and The City of New York, Appellants, Impleaded with Forty-second Street, Manhattanville and St. Nicholas Avenue Railroad Company, Defendant.

First Department,

March 20, 1908.

Negligence —injury by falling into excavation in city street — facts not showing .negligence of contractor or municipality.

It is not a nuisance for a contractor lawfully engaged in constructing a subway under a city street to keep a trench open when it is necessary to the work, even though it be dangerous; but he must use reasonable care to so guard the excavation as. to warn persons using the highway. , ■

Where such excavation is located at some distance from the usual and customary crossings a contractor is not negligent in failing t.o surround it with a fence if it would have put a stop to all vehicular traffic, and the usual precautions were taken by marking the opening with red lights at night and by employing a watchman to warn vehicles and pedestrians.

Nor is the contractor negligent in failing to erect a barrier along the curb so as ■ to render it physically impossible for pedestrians to cross, for the contractor is not an insurer against possible accident. He is only bound to use reasonable care to guard against accidents, and in determining what is reasonable cafe he is entitled to take into account the desirability of interfering as little as possible with traffic and the improbability of any one attempting to cross the street at a point other than the' usual crossing.

Evidence in an action to recover damages caused to a pedestrian who at night, while making his way across the street amidst crowded traffic, fell into an excavation and was injured, examined, and, held, insufficient to establish the negligence of the contractor or the municipality, or that the plaintiff was free, from contributory negligence.

*825Appeal by the defendants, the Degnon-McLean Contracting Company and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Mew York on the 28th day of March, 1906, upon the verdict of a jury for $4,500, and also from an order entered in said clerk’s office on the 19th day of March, 1906, denying the defendants’ . ■motions for a new trial made upon the minutes, and granting the plaintiff an extra allowance.

*James F.*Donnelly, for the appellant, the Degnon-McLean Contracting Company.

*Theodore Oonnoly,*for the, appellant, City of Mew York.

*John M.*Ward, for the respondent.

Scott, J.:

This is an appeal by both defendants from a judgment for plaintiff upon a verdict in his favor in an action for personal injuries, and from an order denying a motion to set aside the verdict and for a new trial.

The defendant construction company was engaged, and had been for some time engaged, in constructing a subway through Forty-second street in the city of Mew York under what is known as the Bapid Transit Act (Laws of 1891, chap. 4, as amd.). The accident occurred on December 12,1902, at about half-past five o’clock in the evening, when it had grown fairly dark. The subway ran through Forty-second street from Fourth avenue to Broadway and consisted of a tunnel constructed in what is known as an open cut. The surface of the street had been opened, an excavation made to the necessary depth, the tunnel built, the excavation filled up and surface replaced. This work had been going on for a long while, and the street had been in a greatly disturbed condition. At the time of the accident the work immediately west of Sixth avenue had been nearly completed, and the surface of the street restored except for a narrow trench which had necessarily been left open for the completion of the work. There was a double line of car tracks on Forty-second street, and this trench ran between the two lines of track. The cars as they passed extended outside the tracks so'as to partly cover the trench, so that it was impracticable to rail it off without com*826pletely stopping the running of the cars. The open trench began at a point about thirty or thirty-five .feet west of the crosswalk over Forty-second street on-tlie westerly side of‘ Sixth avenue, and ran westerly for some distance toward Broadway. The street along the curb line was littered up in places with the contractor’s tool boxes and materials so that carts and wagons passing through Forty-second street were obliged at these places to drive on or partly on ' to the tracks. Forty-second street is a comparatively wide and very important cross street and much traveled. The plaintiff with two . companions, who were fellow-workmen, had come from their employer’s shop at Fifth avenue and Forty-fifth street. They had crossed from the easterly to the westerly side of Sixth avenue, somewhere above Forty-second street, and had walked to the foot of the stairway leading to the elevated railway at the northwesterly corner of Forty-second street and Sixth avenue, and stood there for a while talking. The point at which they thus stood was on the northerly side of Forty-second street, about thirty-five feet west of the westerly house line of Sixth avenue, or very nearly opposite, and perhaps a few feet west of the point where the open trench began. After talking for a few minutes they decided to cross to the- southerly side of Forty-second street, and started to go directly across the street. At this moment there was a block or congestion of the traffic along the railway tracks to such an extent that the streetcars, trucks and other vehicles were crowded together oh both tracks, and were either stationary or were moving very slowly." The plaintiff led his' companions". His own version of what happened is as follows: *“*I could- only see the track nearest me on Forty-second street. 1 started to go across the street; there was a car right in front of me, and there must have been another car or horse, and I had to take a chance to go through there because it was blocked. When I say I took a chance to get through, I mean to say there Was a space there. I forget whether the car was standing still or in motion. I passed at' the rear of the car; * * * that is, the end of it.”

The moment plaintiff had passed the end of the car he fell into the trench, which he had not observed, and received the somewhat serious injuries for which he has recovered. The point at which he fell .was not more than five or six feet from the easterly end of the open trench, and it was clearly shown that the defendant construe*827tion company had caused a red light to be placed at this end, and had stationed a watchman there to warn foot passengers and vehicles. There were other red lights exhibited at intervals along the trench towards Broadway. There was some difference in the testimony as to how far apart they were, the estimates of distance varying.

It is probably not very-important, so far as concerns this action, how far apart they were, because from the condition of the traffic it is doubtful whether plaintiff would- have observed the lights to the westward however near they might have been together. There was no direct evidence as to how long the trench had been in this condition, but it could perhaps be inferred that, being the last of a long-continued excavation, it or a wider trench had been open for .a considerable time. The defendant construction company was engaged upon a lawful work, and the keeping of the trench open was a necessary part of its work. . It was not, therefore, a nuisance, although it was a dangerous obstruction. Its duty, was to use reasonable care to so guard the excavation as to warn persons using the highway.

From the nature of the case it could-not surround the excavation with a fence, for that would have been to stop all vehicular traffic. It did adopt the precaution which experience has shown to he usually sufficient, to wit, marking the opening with red lights and stationing a watchman to warn vehicles and pedestrians. In determining what precautions it would be reasonable to- adopt,"the construction company was entitled .to take into consideration the location of the construction, some thirty feet away from the usual and customary'crossing. It is true that the plaintiff or any one else had the right to cross a street at any point, but the question the construction company had to determine was not what rights pedestrians had in the highway, but how they would probably exercise these rights. ' *(Derby v. Degnon-McLean Contracting Co.,*112 App. Div. 324.) The defendants were not bound to and could not reasonably have been expected to so guard the trench as to insure the safety of every heedless foot passenger who sought to cross the street at an unusual and unaccustomed place and under conditions which would render all precautions, short of actual barriers, futile and ineffective. There is even less reason for holding the city of New York liable than for holding the contractor. It is unnecessary to discuss the *828question whether or not the subway contracts were the city’s contracts. It undoubtedly had notice of the general progress of the subway work, as all the world, including the plaintiff, had, and was bound to know that such work was likely to leave dangerous holes in the highway, and as to any hole of which it had notice or which had existed long enough to justify a presumption of notice, it was its duty to see that it was properly lighted or otherwise guarded.' There was no proof of actual notice to the city and no proof whatever in the case as to how long before the accident this trench at this particular point had been open. For aught that appeared the trench might up to the very day of the accident have been safely covered up. The learned justice who.tried the case intimates in his opinion denying the motion for a new trial that the defendants could have absolutely assured foot passengers from accidents such as plaintiff met by placing some sort of a barrier along the curb so as to fence off the roadway from the sidewalk and thus - render it impossible for a pedestrian to attempt to cross, and the chief proof of negligence dwelt upon by the respondent is the failure to erect such barrier. Undoubtedly such a barrier might have been erected i n such a way as to make such-. an accident well nigh impossible, blit we do not consider that either of the defendants were bound to go to this length, for neither of them Was in the position of an insurer against possible accident. All that either could be held to under any view of the case was to exercise reasonable care to guard against accidents, and in determining what would- be reasonable care they were both entitled to take into account the desirability of interfering as little as possible with the traffic, and the improbability of any one attempting to cross the street at a point other than the usual crossing. We think that the plaintiff" failed to show a lack of due diligence on the part of either defendant, and that in this' regard the verdict was against the weight of evidence. The proof of plaintiff’s freedom from contributory negligence is scarcely more satisfactory. He knew, from almost daily observation, that the street had long been in a disturbed condition. He could see - on every side evidences that the work had not -been wholly completed. There was a broad crossing near at hand which was fully covered over and perfectly safe. The street was blocked with vehicles which obstructed liis vision. With this knowledge and *829under these conditions he blindly and heedlessly undertook to cross the street at a point which, while not in the middle of the block, was some thirty or thirty-five feet away from the usual crossing. U pon every proposition necessary to support a recovery the verdict was against the weight of the evidence • and should have been set aside. The "judgment and order should be reversed and a new trial granted, with costs to appellant to abide-the event.

Patterson, P. J., McLaughlin, Laughlin and Houghton, JJ., ' concurred.

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