Michele Russo, Respondent, v. Thomas Crimmins Contracting Co., Appellant, Impleaded with George J. Atwell Foundation Corp., Defendant

Michele Russo, Respondent, v. Thomas Crimmins Contracting Co., Appellant, Impleaded with George J. Atwell Foundation Corp., Defendant. First Department, June 19, 1942. James B. M. McNally of counsel [Samuel Rudykoff with him on the brief; MacIntyre, McNally & Downey, attorneys], for the appellant. Charles Glatser of counsel [David M. Fink and Jacquin Frank, attorneys], for the respondent. [MAJORITY — Per Curiam.] Per Curiam. Appellant has been held liable for personal injuries sustained by the plaintiff in an accident which occurred on or about September 25, 1938, when plaintiff’s foot caught in a space between two timbers of a temporary street erected over a railroad in connection with a grade crossing improvement. The trial court advised the jury that defendant-appellant would only be liable if it had improperly constructed the highway, as it was not liable for the negligent maintenance of the street after completing the work of construction. No exception was taken by plaintiff to this charge. The uncontradicted evidence disclosed that the portion of the street where the accident happened was completed in October, 1937, or eleven months before the accident. There was no evidence to show that the space, which plaintiff claimed was the occasion of the accident, had existed during the eleven months in question — in other words, that it arose from faulty construction. The structure was not a permanent one, and plaintiff’s own testimony showed that at the time of the accident the planks making up the roadway were subject to considerable movement each time a vehicle passed over them. There was no evidence as to how long this condition -had existed. Under the circumstances, we find that the evidence was insufficient to show any faulty construction, and, therefore, defendant was improperly charged with liability. The judgment should be reversed, with costs, and the complaint dismissed on the merits, with costs. Present — Martin, P. J., Untermyer,"Dore, Cohn and Callahan, JJ. Judgment unanimously reversed, with costs, and the complaint dismissed on the merits, with costs.