#### Emma Berry, as Administratrix, etc., of Walter Berry, Deceased, Respondent, *v.*Urban Water Supply Company and Beaver Engineering and Contracting Company, Appellants.

Second Department,

June 5, 1914.

Municipal corporations — negligence — injury to pedestrian by falling into open trench in street — failure to guard and light trench — pleading — evidence — admissibility of municipal ordinance — contributory negligence.

Where, in an action to recover for personal injuries alleged to have been sustained by falling into a trench in the street, the complaint charges common-law negligence on the part of the defendants in failing to guard and light the excavation, a municipal ordinance requiring that such openings be guarded and lighted is admissible in evidence, although not pleaded.

A finding by the jury that the defendants failed to properly guard and light the excavation was warranted.

Although the person injured subsequently died, and no witness was produced who saw him fall into the trench, but direct evidence was given that he shouted for assistance and was found in the trench shortly after he had alighted from a street car which ran along one side of the trench, and the surrounding circumstances supported an inference of fact that the decedent was an ordinary wayfarer exercising proper care, and fell into the excavation accidentally, the question of his contributory negligence was properly submitted to the jury.

Appeal by the defendants, Urban Water Supply Company and another, from a judgment of the Supreme Court in favor *22of the plaintiff, entered in the office of the clerk of the county of Queens on the 10 th day of February, 1914, upon the verdict of a jury for $4,000, and also from an order entered in said clerk’s office on the 27th day of February, 1914, denying their motion for a new trial made upon the minutes.

*Charles M. O’Keeffe,*for the appellant Urban Water Supply Company.

*Abram I. Elkus [Carlisle J. Gleason*with him on the brief], for the appellant Beaver Engineering and Contracting Company.

*George F. Hickey [M. P. O’Connor*with him on the brief], for the respondent.

Carr, J.:

The defendants appeal from a judgment entered against them upon a verdict of a jury, and from an order denying their motion for a new trial. According to the plaintiff’s proofs, the defendants made a trench or pit in a public highway in the borough of Queens, for the purpose of laying water mains. Late at night, on September 8, 1911, Walter Berry, the plaintiff’s intestate, a man over fifty years of age, in some manner fell into this trench or pit and suffered a compound fracture of his right leg, the broken bones protruding through the flesh; this injury brought about a surgical or hypostatic pneumonia,” which resulted in his death about a week later. The plaintiff’s complaint charged common-law negligence on the part of the defendants in failing to guard and light the excavation.' The proofs given by the plaintiff were to the effect that there were no barriers or lights about the excavation at the time of the accident. The decedent had no connection with the work of the defendants, and was but a mere wayfarer on the highway when he fell into the pit.

If there were no barriers or lights about this trench to warn and protect travelers on the highway, then their omission was concededly a negligent act on the part of those charged by law with the duty of maintaining them. As a part of her proofs, *23the plaintiff proved and read in evidence a municipal ordinance of the city of New York, which regulated the maintenance of trenches of this character in public highways, and which required them to be guarded by “a fence or railing,” and, at night, by “suitable and sufficient lights, and keep them burning through the night.” A penalty of $100 was provided for a violation of this duty. The defendants objected to the admission of the ordinance in evidence, on the specific ground that it had not been pleaded, and took a proper exception. This presents on this appeal one of the more important grounds on. which a reversal is sought. The appellants cite a number of authorities from other jurisdictions, in which it has been held that the admission in evidence of a municipal ordinance, which was not pleaded, was error even in actions which were not brought specifically to enforce the ordinance, but in which the ordinance was introduced simply as so much evidence, where common-law negligence was charged in the complaint. Some of these authorities are in the courts of Michigan, Illinois and the Circuit Courts of the United States, and nearly all of them are collated and cited in the opinion of the United States Circuit Court in *Robinson*v. *Denver City Tramway Co.*(164 Fed. Rep. 174). The question before us is as to what may be the rule on this point in this State.

Unquestionably, where the liability sought to be enforced arises wholly from a violation of a municipal ordinance, that instrument must be pleaded in order to enforce the liability. Such was the rule declared very early in this State in *Harker*v. *Mayor, etc.*(17 Wend. 199). But where liability arises from a violation of common-law duties and a municipal ordinance is received in evidence, though not pleaded, and simply as incidental or secondary evidence to prove negligence in the performance of common-law duties, I have found no decision in this State which holds such reception to have been error. I understand the rule to be otherwise than as now asserted by the appellants. From time to time this point has been raised on appeal in this court and has been rejected in the actual decisions of the court, but, however, in cases where the point was necessarily involved and which were decided without reported opinions, or with opinions containing no express reference to *24the point. In *Buys*v. *Third Avenue R. R. Co.*(45 App. Div. 11) this point was presented to this court by the appellant in its brief on appeal, and discussed at great length with a citation of outside authorities, almost as numerous as those now presented; but it was disregarded by this court, though its consideration and determination were absolutely essential to the actual decision of the court. Such was also the case in *Skelton*v. *Larkin*(82 Hun, 388; affd., 146 N. Y. 365). In *Archer*v. *N. Y., N. H. & H. R. R. Co.*(106 N. Y. 589) the action was brought in this State to recover damages for personal injuries caused in the State of Connecticut through the alleged negligence of the defendant in operating its trains. A statute of Connecticut regulating the manner of operation of trains was received in evidence, though not pleaded, and over objection and exception, and submitted to the jury for consideration on the question of the defendant’s negligence, and it was held not to he error. A foreign statute, as well as a municipal ordinance, is not judicially noticed in this State, and the rule as to the necessity of pleading is as applicable to one as to the other.

In *Dawson*v. *Sloan*(49 N. Y. Super. Ct. 304) a local statute was admitted in evidence, though not pleaded, on the question of the defendant’s negligence, and an exception was taken. It was pointed out on appeal that it was not error to read the statute in evidence without it being pleaded, as the action was not brought on the statute and the latter was received merely as some evidence of negligence. This decision was affirmed in 100 New York, 620. The reason of the rule, as it has been applied in this State in many cases — without a break in its application, so far as I can find — is stated admirably in *Bailey*v. *Kansas City*(189 Mo. 503, 514), as follows: *“*If a cause of action is based directly on a violation of a duty imposed alone by a municipal ordinance, the pleading should set forth the specific ordinance in hand because courts will not take judicial notice of its existence. * * * But if an ordinance of a city is used as a mere matter of evidence, no good reason is perceived why it should be pleaded; for to plead evidential facts is bad, and, on principle, the rule applies to ordinances. * * * Now, the case [there at bar] * * * is not based on the violation of a municipal ordinance but is based on the violation of *25a duty imposed by general law. Therefore the objection in the form made was properly overruled. ”

In the case now before us the trial court instructed the jury satisfactorily on the issues, and no exception was taken thereto by either party. The defendants offered proofs to show a guarding and lighting of the trench, but on the conflicting evidence the jury found against them. As the proper determination of the disputed facts in this case involved necessarily the question of the credibility of various sets of witnesses, and many of the defendants’ witnesses were “interested witnesses” in that their respective stories tended to reheve them from personal negligence, we do not feel called upon to interfere with the verdict of the jury on this point. It is argued,' however, that the complaint should have been dismissed on the ground that the plaintiff failed to show absence of contributory negligence On the part of the decedent. The cause of action arose, and the case was tried, before the recent amendment to the Code of Civil Procedure, which has transferred this burden to the defendant. (See Code Civ. Proc. § 841b, added by Laws of 1913, chap. 228.) It is true that there is no direct evidence on the part of the plaintiff to show that the decedent was free from contributory negligence. The man who fell into the pit is dead. *No*witness was produced who saw him in the act of falling. But direct evidence was given that he shouted for assistance and was found in the pit shortly after he got off a street car which ran on rails along one side of the trench. The surrounding circumstances, which I will not detail, supported strongly an inference of fact that the decedent as an ordinary wayfarer on a public street, exercising such care as the law requires from him, did not see this unguarded and unlighted hole, and fell into it accidentally; at least, under the facts in evidence, it was a fair question for the jury.

We are not unmindful of the opinion of Gray, J., in *Peterson*v. *Ballantine & Sons*(205 N. Y. 29)—-for we have had occasion to apply it not long ago — but there the decedent was run down by a truck while crossing a public street in broad daylight. Witnesses were produced who saw him both immediately before and at the time of the accident. The facts *26proved showed that had the decedent but glanced his eyes, he could not have escaped seeing the oncoming "truck in time to avoid it. It was under such circumstances that it was held that there was a failure to show freedom from contributory negligence. The surrounding facts here at bar are so different that the holding in *Peterson*v. *Ballantine & Sons (supra)*does not require a reversal of this judgment.

The judgment and order should be affirmed, with costs.

Present — Jenks, P. J., Burr, Oabr, Stapleton and Putnam, JJ.

Judgment and order unanimously affirmed, with costs.