#### Hughes *v.*Orange County Milk Assn. *et al.*

*(Supreme Court, General Term, Second Department.*

May 12, 1890.)

L Negligence—Dangerous Premises.

Where a hole In the pavement in front of a stable occupied by defendant as lessee is left open by a person who was removing manure from the pit under the pavement, for which he had a yearly contract with defendant, defendant is liable to persons injured thereby.

2. Damages—Measure for Personal Injuries.

In an action for personal injuries, a verdict for $4;680 is not excessive where it is shown that before the accident plaintiff was a strong man, earning $3.50 a day; that, in consequence of the injury,.he is unable to work; that his condition is growing constantly worse; and that his breathing and.heart action are affected, and his physician fixes eight years as the limit of his life.

Appeal from circuit court, Kings county.

Action for personal injuries, brought by Michael Hughes against the Orange County Milk Association and Michael McGirr. There was a verdict for plaintiff for $4,680, and from the judgment entered thereon defendant association appeals.

*253Argued before Barnard, P. J., and Dykman and Pratt, JJ.

*Glover, Sweezy*16 *Glover, (Richard L. Sweezy,*of counsel,) for appellant. *Charles J. Patterson,*for respondent.

Barnard, P. J.

The defendant the Orange County Milk Association occupied premises in New York city as a stable. The defendant MeGirr was under a yearly contract with the association to remove the manure therefrom. There was a pit under the sidewalk of the street, and the manure was taken from this pit, and carried away. The covering over the mouth of the pit was necessarily removed while the manure was being taken out. The hole was of considerable size, being three or four and one-half feet by three feet; the longer side being parallel with the street. The hole was seven or eight feet deep. On the morning of the 29th of December, 1887, the plaintiff was passing along this sidewalk. There was a strong wind blowing in his face, and it was quite dark, being about half past 6 o'clock. It was very cold. The sidewalk was very narrow, sufficient for only two men to walk abreast. The hole is some three feet from the curb-stone. The smoke from the manure was dense, and the wind blew it in the face of the plaintiff. The plaintiff saw the smoke, but did not know it canle from an open hole, as there was manure outside. The plaintiff fell into the hole, and fell clear to the bottom of the pit, and was injured.

Assuming a cause of action, does it exist against the Orange County Milk Association, under these facts? The association was the lessee and in possession of the premises, and had entire control of the use, and mode of use, of them. The pit was not of itself a nuisance, but became so when it was left unguarded. The cases cited to show that a landlord who has hired premises with a coal-hole under the sidewalk, excavated by permission of the city, and well made, is not responsible for the neglect of a tenant who has entire possession, have no application to this case. *Wolf*v. *Kilpatrick,*101 N. Y. 146, 4 N. E. Rep. 188, was a case where a stranger wrongfully broke the stone supporting the covering of the hole. The case of *Jennings*v. *Van Schaick,*108 N. Y. 530, 15 N. E. Rep. 424, was a case where a house was rented in flats. A janitor lived in the basement. There was a coal-hole under the sidewalk, built by legal permission. The owner hired the janitor. He left the coal-hole open, and the court of appeals held the owner liable. This ease is really much stronger against the defendant company, for it had the premises, and hired the man to remove the manure. This man was not a tenant, but a servant, of the company. The company was bound to see to it that the sidewalk was made safe while the hole was open. *Clifford*v. *Dam,*81 N. Y. 52. If this is the correct view, the question of the accuracy of the rulings in respect to the admission of the New York city ordinances as to pits under sidewalks becomes immaterial. The ordinances merely provide for the safety of the open hole, and the defendants were bound to see to that without them.

If the evidence in support of the extent of the injury was credited by the jury, the verdict is fully supported. The plaintiff was a strong man before the accident, and was earning $3.50 a day as a journeyman cooper. In consequence of his injury, his flesh has wasted away. He has no strength to go up-stairs without the aid of the banister. He cannot even walk the street for over a few minutes. He has been “laid off” from his employment because he cannot do the work, and his condition is growing constantly, but slowly, worse. He has trouble with his breathing, and his heart action is affected. The physician who attends him fixes eight years as his limit of life. It would be impossible for an appellate court to weaken this testimony, even if the rule in respect to appeals from verdicts on questions of fact permitted a review. The jury, on questions of fact, are only to be subject to review in extreme cases. This is not such a case, and the judgment should therefore be affirmed, with costs. All concur.