(79 Hun, 89.)

#### HOYER v. VILLAGE OF NORTH TONAWANDA.

(Supreme Court, General Term, Fifth Department.

June 20, 1894.)

Municipal Corporations—Defective Streets—Notice.

A village which has granted, the right to construct a street railroad is-chargeable with knowledge of what is being done under the grant, and therefore is liable for injuries caused by an excavation left at night without signal lights or guards, though the excavation was made on the day of the injury.

Appeal from circuit court, Niagara county.

Action by Frederick F. Hoyer against the village of North Tonawanda. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.

Affirmed.

Argued before DWIGHT, P. J., and LEWIS, HAIGHT, and BRADLEY, JJ.

Root, Orton & Baldwin, for appellant.

George W. Cothran, for respondent.

BRADLEY, J.

In the evening of December 9, 1892, the plaintiff’s buggy in which he was riding, on Vandervoort street, in the village of North Tonawanda, was overturned, and he was thrown out and injured. He charges that his injury was caused by the negligence of the defendant. The occasion of the accident was an excavation made in the street by the Tonawanda Street-Railroad Company, which was proceeding to construct its road in that street. For that purpose the company, on the day of the injury, had excavated a place for its location there. The plaintiff, not being aware or advised of the situation, drove into the excavation, causing the injury. It was dark, and the evidence on the part of the plaintiff tends to prove that there were no barriers or lights, other than the electric lights at some distance from the place in question to warn him of the danger. Upon the subject of lights, there was a conflict in the evidence. Witnesses on the part of the defendant testified that there was a red light at the intersection of Thompson and Vandervoort streets, where the plaintiff turned from the former into the latter, and another south on Vandervoort street. The question whether or not such lights were there was one of fact for the jury.

*651The village authorities had, in the spring before, granted to the company the franchise to construct its railroad in various streets of the village, including that in question, and thereafter the company had been engaged in the work of construction of its road; but nothing for that purpose had before that day been done in that particular locality. The jury were, by the evidence, permitted to find that the condition in which it was left at the close of that day was dangerous to the public travel, and that no suitable guards or means were provided to warn persons driving in the street of the danger. It is, however, urged that notice of the unsafe condition of the street at the place in question was not imputable to the defendant, and for that reason the exception to the denial of the motion for a nonsuit was well taken. The trustees knew that the company had been during the summer engaged in tearing up streets in places, preparatory to the construction of its railroad; and, in the grant of the permit to construct it, some provision was made for supervision of the street committee of the board of trustees; and, as to the public, the duty was with the latter to exercise care for the protection of the travel upon the streets. The trustees were advised that the work which the company was doing for the purpose of the construction of its road rendered the portions of the streets where they were so engaged unsafe, and that it was essential that some means should be provided as a warning of the danger which otherwise might be encountered by the persons passing over the streets with vehicles; and, with a view to that, it would not be unreasonable to suppose that they may have deemed it their duty to observe where the company was doing its work, and to, take precautionary measures for the safety of travel within the village. The trustees may have supposed and assumed that the company would do all that was essential to that purpose; but this did not necessarily excuse them from that reasonable care and vigilance which their duty to the public imposed upon them. Pettengill v. City of Yonkers, 110 N. Y. 558, 22 N. E. 1095; Masterton v. Village of Mt. Vernon, 58 N. Y. 391. Inasmuch as the excavation was not the act of the defendant through any of its officers or employes, notice of it, express or implied, was requisite to charge the defendant with negligence. When a defective condition of a street is produced by some sudden cause, or by the act of a trespasser, or by some means not anticipated; a reasonable time is requisite to raise the implication of notice to the municipal authorities. This, after such time, could be implied from the fact that the supervision and care of the streets are within the duties which they are required to observe and exercise, and then it maybe supposed that those charged with such duty have become cognizant of the situation which requires their attention. What is the time requisite to charge the municipal corporation with such notice is dependent upon circumstances. In the present case, excavation in the streets, in the manner and for the purpose which it was done by the railroad company, was made pursuant to the permission given by the defendant. The latter, therefore, was chargeable with knowledge of what was being done by the company in the streets, *652where its franchise, so granted to it, permitted the construction of the railroad, and was advised of the necessity of providing some means for warning people to avoid the danger of entering the portions of the streets thus, for the time being, rendered unsafe for travel; and whether the defendant was chargeable with a want of reasonable diligence in not having seen to it that safeguards were provided for the purpose at the time and place in question, and whether the plaintiff’s injury was attributable to the negligence of the defendant, were questions for the jury. Wendell v. Mayor, *43 N. Y. 261, 4 Abb. Dec. 563; Hume v. Mayor, 74 N. Y. 264. While the plaintiff, if nothing appeared to indicate to the contrary, was permitted to assume that he could safely proceed, he, nevertheless, was required to exercise care to avoid any danger which, under the circumstances, he had any reason to apprehend may have existed. He knew that the company was proceeding with the work of construction of its railroad in the streets, but had not been advised that it was so engaged at the place in question. He went over the street the day before. It was then in good condition. If, as the evidence on his part tended to prove, no suitable precautionary means were provided to warn persons not to proceed into the place of the accident, the jury were permitted to find that the plaintiff was free from contributory negligence, and that his injury was attributable to the negligence of the defendant. These facts were properly submitted to the jury. The judgment should be affirmed. AH concur.