Julius Friedel, as Administrator, etc., of Martha Friedel, Deceased, Appellant, v. Euphemia S. Coffin and Philip Wagner, Respondents

Julius Friedel, as Administrator, etc., of Martha Friedel, Deceased, Appellant, v. Euphemia S. Coffin and Philip Wagner, Respondents. First Department, March 14, 1913. Highways — negligence — failure to guard pit between building and sidewalk—injury to child — erroneous nonsuit. Where in an action against the owner and lessee in possession of a building to recover for the death of plaintiff’s intestate it appeared that the defendant maintained a pit between the sidewalk and the building about ten feet deep, eight feet long and eighteen inches wide, protected from the sidewalk only by two iron rails, the first eighteen inches above the sidewalk and the second sixteen inches above the first, and that the decedent, a child four or five years old, while playing with her back toward the pit lost her balance and fell therein, the question as to whether the railing was a reasonably safe protection was for the jury, and a dismissal of the complaint was error. Appeal by the plaintiff, Julius Friedel, 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 New York on the 1st day of November, 1911, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case on a trial at the New York Trial Term, and also from an order entered in said clerk’s office on the 20th day of November, 1911, denying the plaintiff’s motion for a new trial made upon the minutes. Plaintiff’s intestate, a child four years and seven months of age, while playing in front of certain premises in New York city was killed by falling into a pit or cellar hole situated between the sidewalk and the building. This pit was about ten feet deep and eight feet long and was protected by a railing consisting of two iron pipes about two inches thick. The first iron pipe was about eighteen inches above the sidewalk, the second about sixteen inches above the first. J. Franklin Tausch, for the appellant. William A. Jones, Jr., for the respondent Coffin. James J. Mahoney, for the respondent Wagner. [MAJORITY — Scott, J. :] Scott, J. : Whether the areaway was within the street lines or wholly Upon the premises owned by the defendant Coffin and leased by the defendant Wagner, it was contiguous to the traveled sidewalk and it was the duty of the owner and lessee to see to it that the excavation was properly and reasonably guarded, for the presence of a deep excavation along the lines of the sidewalk, unless sufficiently guarded, necessarily created danger. (Donnelly v. City of Rochester, 166 N. Y. 315, 319.) Whether the railing erected by the owner was a reasonably safe protection, considering the fact that children as well as adults were likely to use the sidewalk, was primarily a question for the jury (Id.), for unless the evidence is so plain that reasonable men might not reach adverse conclusions upon the subject a question of fact is presented for submission for the jury. (Erickson v. Twenty-third Street R. Co., 71 Hun, 108.) Upon the evidence as it stood when the complaint was dismissed, we think that reasonable men might well differ as to the sufficiency of the railing. It was, therefore, error to dismiss the complaint. The judgment and order should be reversed and a new trial granted, with costs to appellant to abide the event. Ingraham, P. J., Laughlin, Clarke and Dowling, JJ., concurred. Judgment and order reversed, new trial ordered, coste ta-appellant to abide event. Order to be settled on notice.