Johanna Kuechenmeister, Appellant, v. Vernon H. Brown, Respondent, Impleaded with John Jacob Astor and Others, Executors, etc., of William Astor, Deceased

Johanna Kuechenmeister, Appellant, v. Vernon H. Brown, Respondent, Impleaded with John Jacob Astor and Others, Executors, etc., of William Astor, Deceased. Negligence — accident in stepping into a coalhole — conflict of evidence —quaere whether a coal hole is a nuisance. Upon the trial of an action brought to recover damages for injuries sustained by the plaintiff in stepping into a coal hole, the plaintiff testified that while she was walking along the sidewalk in front of the premises occupied by the defendant upon a dark and snowy night, she stepped upon-the cover of a coal hole, “ which flew away; ” that she fell into the hole as far as her knees and was injured; that the cover was lying by the hole, and that the hole was entirely open. The defendant, being called as a witness by the plaintiff, testified that the cover of the coal hole and the means of securing it were in perfect condition at and before the accident, and if the cover was properly secured no one could fall into the hold; that he examined the coal hole immediately after the accident and found the cover properly secured in its place. Held,, that the question of the defendant’s negligence should have been submitted to the jury; That the case might be treated as an action predicated upon negligence alone, and that it was not necessary to determine whether the coal hole in the sidewalk was a nuisance; That it was the duty of the defendant to keep the cover of the coal hole safely" in place. Appeal by the plaintiff, Johanna Kuechenmeister, from a judgment of the Court of Common Pleas for the city and county of New York in favor of the defendant, Vernon II. Brown, entered in the office of the clerk of said court on the 13tli day of October, 1894, upon the dismissal of the complaint directed by the court after a trial before the court and a jury, and also from an order entered in said clerk’s office on the lOtli day of November, 1894, denying the plaintiff’s motion for a new trial. The case was tried before the court and a jury. At the close of the plaintiff’s evidence the court dismissed the complaint. The action was brought to recover damages for personal injuries, and was sought to be maintained upon two grounds, the maintenance of a nuisance and negligence. The plaintiff testified on the trial that, on the 22d day of January, 1892, about eight o’clock at night, it being dark and snowing, while walking upon the sidewalk in front of the premises occupied by the defendant, she stepped upon the cover of the coal hole, it flew away, and she fell down into the hole as far as her knees, and in falling received the injuries complained of; that the cover was lying by the hole and the hole was all open. She then called the defendant as a witness, and he testified that he was the occupant of the premises and had been for a year before the accident; that there was a connection from the sidewalk to the cellar of the house; that he used the cellar for coal, and the coal hole to put the coal in the cellar ; that the coal hole cover and the means of securing the same were all in perfect condition at and prior to the accident, and if the cover was properly secured in its place it would be impossible for any one to fall in the hole. He also testified that he examined the coal hole immediately after the accident occurred and found the cover properly secured in its place. No other witnesses were sworn, and upon this evidence the decision of the court was made. Edwa/rd Grosse and Charles Goldzier, for the appellant. Ira D. Warren, for the respondent. [MAJORITY — Williams, J.:] Williams, J.: The trial court erred in taking the case from the jury and dismissing the complaint. The question of the defendant’s negligence should have been submitted to the jury. It is not necessary to determine whether the coal hole in the sidewalk was a nuisance so as to render defendant liable for any damages resulting from its maintenance, regardless of the question of negligence. It is evident that no accident would have occurred in the absence, of negligence in keeping the cover properly secured. Ho one would have fallen into the hole so long as the cover was kept in its. place by the appliances provided for that purpose. The case may,, therefore, be treated purely as one of negligence, and in this view the question of the defendant’s negligence was clearly for the jury.. If the cover was unsecured and out of its place and the plaintiff fell into the hole, as she testified she did, then certainly the defendant, may be charged with negligence. It was his duty to keep the cover safely secured in its place, and if, through his own carelessness, or that of his agents or servants, it. was left unsecured and the hole unprotected, then he was guilty of negligence. The appliances for securing the cover were below the walk in the-premises of the defendant, and the inference might well have been drawn by the jury that the condition of the hole and cover at the time of the accident was due to the act or neglect of the defendant or his agents or servants. Whether the hole was uncovered and the plaintiff fell into it, as she testified on the trial, was a disputed question of fact and should have been submitted to the jury. If the jury credited the plaintiff’s evidence, the inference might well have been drawn that the defendant was guilty of negligence which caused the accident and injury to the plaintiff. The judgment should be reversed and a new trial ordered, costs, to the appellant to abide event. Van Brunt, P. J., Barrett, Patterson and O’Brien, JJ.y concurred. Judgment reversed, new trial ordered, costs to appellant to abide event.