Smith v. E. W. Foley Contracting Corp.

Headnote

•Negligence — highways — excavation in highway — inadequate warning 'lights.

Smith v. Foley Contracting Corpn., 206 App. Div. 787 , affirmed.

Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered July 9, 1923, affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover for personal injuries alleged to have been sustained by plaintiff through the negligence of defendant. Defendant, in constructing a feeder from the Hinckley reservoir to the Barge canal, pursuant to a contract with the state of New York, was required to make an excavation about thirty feet deep and sixty feet wide across the state highway leading from Utica to Barneveld village, to place therein a culvert construction to carry the water. Defendant constructed a temporary bridge and detour for traffic aross the feeder, immediately adjoining the excavation through the macadam. On June 3, 1917, about nine-thirty p. M., plaintiff was riding toward Utica in an automobile operated by her husband, when the automobile ran through the barriers maintained by defendant across the macadam about forty feet northerly of this excavation and ran forward and into the excavation, the automobile falling some fifteen feet, bottom up, injuring plaintiff. The only ground of alleged negligence finally submitted to the jury was whether defendant used reasonable care in putting out and maintaining adequate warning lights to warn travelers of the existence of the excavation.