Anton Follert, as Administrator, etc., of Anton Follert, Deceased, Appellant, v. John Erikson, Defendant, Impleaded with The City of New York, Respondent

Anton Follert, as Administrator, etc., of Anton Follert, Deceased, Appellant, v. John Erikson, Defendant, Impleaded with The City of New York, Respondent. Second Department, April 30, 1913. Municipal corporations — negligence — death "by fall of .undermined sand bank — contributory negligence of infants. A-city may be held liable for the negligence of its employees who while engaged in taking, sand from a bank with knowledge, that children cus-; tomarily played in the vicinity, undermined the bank until it was-nearly at the falling point and left it in that condition with the result that it .subsequently fell and-killed a child of-tender years. In an action to recover for a death so caused, the contributory negligence of the decedent cannot be determined as a matter of law where she, being two and one-half years old, was accompanied by her sister who was thirteen years of age. Nor can.the custodian be found guilty of negligence as a matter of law where she did not know of the city’s custom to undermine the bank until it was in danger of falling. Jerks, P. J., and Burr, J., dissented. Appeal by the plaintiff, Anton Follert, as administrator, etc., from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 1st day of February, 1912, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case on a trial at the Kings County Trial Term. Martin S. Lynch [S. C. Sugarman with him on the brief], for the appellant. James D. Bell [Frank Julian Price and Archibald R. Watson with him on the brief], for the respondent. [MAJORITY — Thomas, J.:] Thomas, J.: The plaintiff’s child, two and a half years old, in company with his sister, at the time about thirteen years of age, was killed by the falling of a bank where the servants of the defendant city were, and for some considerable time had been, taking sand, although such taking was without the authority of the owner. Indeed, the attorney for the city stated upon the trial that the sand was stolen. The testimony of the sister shows what happened at the time of the accident, and it is undisputed that the lot was one commonly used as a playground for children, and that the persons taking the sand from the place knew this. The pit was back from the street from forty to sixty feet, with a width from forty to forty-five feet, and a height estimated from six to ten feet. The custom was to dig under the bank and then cut the bank down. As another witness put it, “ I dug down and then after the sand was dug out the top would fall. ” It is apparent that it had been excavated to the breaking point, although the fall did not occur while the men were on the ground. But the city’s servant shortly before was working at that place, and indeed took sand from there that very morning and left the bank in a condition liable to fall, although he knew, as he says, the children “would come there with their little shovels after sand. .Those children, they run all sorts — from children up to about 10 or 11 years old, some six months older.” For the purposes of this • decision, it is unimportant that the city was a trespasser.' It had been taking sand from this place for some considerable time and was liable for the taking to the owner. So the situation is that the city, knowing that little children customarily played in this sand bank, pursued a method of digging until the bank was ready to fall and followed such practice on the day in question, but left the bank practically at the falling point, with the result that while delivering sand the bank fell. The respond- • ent relies upon Newdoll v. Young (80 Hun, 364), where the owner and a person using a sand pit were sued for the death of a child who entered it during their absence and played under, the overhanging bank. It was held that the owner was not liable, and that Thatcher, who used the pit as did others, neither' made the excavation nor controlled it. In the case at bar the defendant assumed- control and created dangerous conditions, and left it, knowing that the excavation had reached the stage where the bank was liable to fall, and that if it fell it would be likely to injure the numerous little children playing under it. In this view the defendant’s negligence should have been submitted to the jury. The question of the contributory negligence should not be determined by the court, as the child was in charge of a person of sufficient judgment so as to permit the child to be abroad, and it cannot be declared as a matter of law that the custodian was guilty of negligence because she did not know the city’s custom to dig back into the sand until the overhanging bank was in danger of falling. The judgment should be reversed and a new trial granted, costs to abide the event. Hirschberg and Stapleton, JJ., concurred; Jenks, P. J., and Burr, J., dissented. Judgment reversed and new trial granted, costs to abide the event.