Crowther v. City of Yonkers

Barnard, P. J.

The defendant was constructing a sewer in Neppertron avenue. The sewer was only protected at the head of the excavation. The sides were left unprotected. On the night of the 7th of January, 1890, the plaintiff was found injured at the bottom of the sewer-trench, which was some 8 feet deep, and some 70 feet from the head of the sewer. The defendant was guilty of gross negligence. Pettengill v. City of Yonkers, 116 N. Y. 558 , 22 N. E. Rep. 1095. The proof that the accident was caused by this neglect was sufficient. The plaintiff left her son’s house, in Jones place, at about 6 o’clock, to go to her home. She had to cross Neppertron avenue to get there. She was found in the trench. There was no suggestion of suicide from the evidence, and none of violence by others to the plaintiff. The natural inference was that the plaintiff, in her attempt to cross the avenue, fell in the unguarded excavation. She had the right to cross the street with due care at other points than the regular crossings. She also had the right to assume that the streets were safe. She was free from contributory negligence, as matter of law, and the jury were justified in finding her free from contributory negligence as a matter of fact. The night was very dark. The plaintiff was an elderly woman. The point of crossing Neppertron avenue was in the direct line of her route home. She was found in the trench so soon after leaving her son’s house as to prove that she went directly for her home until she fell in the trench. The trench was -invisible to those who found her. The place was unlighted, and it was a very public thoroughfare. The action is supported by the cases of Johnson v. Railroad Co., 20 N. Y. 65 ; Totten v. Phipps, 52 N. Y. 354 ; Tolman v. Railroad Co., 98 N. Y. 198 ; Galvin v. Mayor, etc., 112 N. Y. 223 , 19 N. E. Rep. 675. In the case of Bowen v. City of Rome, 23 Wkly. Dig. 406 , the plaintiff knew oí the excavation, and without due care attempted to cross it, and fell in and was injured. She was nonsuited for contributory negligence. This ease had enough evidence to go to the jury on that question, under the rule laid down by the court of appeals in the cases above cited. Judgment affirmed, with costs.

All" concur.