John J. Buckley, Respondent, v. The City of New York, Appellant

John J. Buckley, Respondent, v. The City of New York, Appellant. First Department, December 30, 1909. Municipal corporation — negligence — injury by excavation in city street—-facts not justifying, recovery—effect of issuing, permit for excavation — notice. Action against the city of New-York to recover damages for personal injuries. The plaintiff while driving a wagon at high speed at night ran into a mound of dirt Which had. been thrown up from an excavation in the street. He claimed that he saw no lights about the excavation', but there was testimony to the contrary. On all the evidence, held, that a verdict based on a finding of' negligence by the city and a lack of contributory negligence by the plaintiff was against the weight of evidence. Where the city of New York authorizes a licensed plumber to make an excavation in a public street for the purpose of repairing a sewer, the excavation is not a nuisance per se so as to make the city a partner with the plumber. The fact that the city issued a permit for such excavation merely charges it with notice thereof, but does not otherwise extend its liability. Being charged with notice, the city was bound to see that the excavation was properly guarded, but did not thereby become an insurer of the safety of wayfarers, nor was it chargeable with notice that one of the lights guarding the excavation became extinguished shortly before the accident. Appeal by the defendant, The City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the lltli day of February, 1909, upon the verdict of a jury for §650, and also from an order entered in said clerk’s office on the 8th day of February, 1909, denying the defendant’s motion for a new trial made upon the minutes. Loyal Leale, for the appellant. Roger 8. Baldwin, for the respondent. [MAJORITY — Scott, J.:] Scott, J.: Appeal from a judgment for plaintiff for damages for personal injuries. The plaintiff was the driver of a newspaper delivery wagon. Shortly after four o’clock a. m., of March 24, 1906, he was driving very fast up the Bowery carrying a load of newspapers from the general post office to the Grand Central station. Fifty feet south of Houston street an excavation had been made in the roadway by a licensed plumber under a permit issued by the street department. The excavation was for the purpose of repairing a break in a sewer. It ran north and south, was three feet wide, and about ten feet long. It was protected by planks standing up on eiid in the excavation, and the dirt was thrown in banks on either side, there being from one and one-half feet to three feet between the westerly edge of the embankment and the easterly rail of the easterly car track. The excavation had lasted about ten days. The plaintiff was driving, as he says, at a fast trot or gallop, having about ten minutes to drive from Houston street to Forty-second street. He was driving on the easterly track with his right wheels outside and to the east of the track. He saw the pile of dirt when he was within a few feet of it, and tried to pxxll out, but unsuccessfully, his wheel running-up on the embankment and upsetting the wagon. He says that he saw no lights, but the evidence is quite convincing that lights were put on every night, including the night of the accident, one showing uptown and another showing downtown ; that at least one of these lights was burning when the accident happened, and that both lights had been burning ten minutes earlier. The court charged the jury iix the main very fairly as to the degree of care' which the city was bound to. exercise. It, however, iñtei’jected into the charge an extract from the opinion of this court in Godfrey v. City of New York (104 App. Div. 357) which taken alone, without the context which accompanied it in the original, stated the case against the city rather more strongly than was strictly accurate. This was not excepted to and would not be referred to but for the fact that it may have influenced the verdict which, as we think, was contrary to the evidence. The obstruction was a lawful one and such as xnu'st of necessity be created from time to time. It was not per se a nxiisance which the city authorized or permitted and thus became a partnei’-in, like those in Cohen v. Mayor, etc., of N. Y. (113 N. Y. 532); Speir v. City of Brooklyn (139 id. 6); Landau v. City of New York (180 id. 48). That the city issued a permit -for the excavation under the facts of this case mei'ely establishes notice, but does not otherwise extend its liability. The result is that the city, having notice and knowledge of the excavation, was bou d to exercise reasonable care to see that it was propeily guarded =■: as to insure the safety of those who, themselves exercising reasonable care, used the highway. ' The city might not absolve itself from the duty of using care, by relying-upon the contractor to do it, but was bound through its proper officer to see that the contractor did his duty in that regard. Still it was not an insurer of the safety of wayfaiders. The evidence clearly showed' that the contractors and the city had exercised cai-é and that the police officer upon that particular beat gave especial attention to the lights upon the excavation because he knew that newspaper wagons drove up the Bowery nightly at high speed. It was clearly established that the lights were burning up to a few minutes before the accident, at the woi’st. What caused the southerly light to go out, if it did go out, is not shown. At all events the length of time that elapsed between the time it went out arid the time the accident happened was too short to impute notice to the city. (McFeeters v. City of New York, 102 App. Div. 32; Gedroice v. City of New York, 109 id. 176.) So far as the city is concerned there is no difference between a light which, having been lighted, goes out, and a light which has been removed by a third person. We do not consider that the evidence justified a finding that the city had been negligent. On the other hand there is satisfactory evidence that the plaintiff was guilty of contributory negligence. He was' driving through the street on a dark night at a furious speed. This in itself indicates a lack of reasonable care, and it may ■readily be inferred that if he had been driving at a moderate pace he would have been able to avoid the obstruction. The judgment and order appealed from must be reversed and a new trial granted, with costs to the appellant to abide the result, Ingraham, McLaughlin, Clarke and Houghton, JJ., concurred. Judgment and order reversed, new trial ordered, costs to appellant to abide event.