Reilly v. Sicilian Asphalt Paving Co. — 73 N.Y. St. Rep. 232

Majority

p. 232

John F. Reilly, Resp’t, v. Sicilian Asphalt Paving Company, App’lt.

(Supreme Court, Appellate Term, First Department,

Filed Feb. 26, 1896.)

Headnote

Negligence—Obstruction oe street.

■ Where an asphalt company leaves a bank of gravel about four feet from the gutter without a light, it is liable to one who drives over it in the night and is injured thereby, though piles of asphalt, about twenty feet distant from the gravel, but nearer the gutter, have lights thereon.

Appeal from a judgment in favor of plaintiff,

Herbert C. Smyth and G. Thornton Warren, for app’lt; John Mulholland, for resp’t.

The plaintiff sued for and recovered damages for injuries.to his carriage, occasioned by his driving upon and against a pile of wet sand and gravel, placed by the defendant

p. 233

company in the western driveway of Central Park, and maintained, during the darkness, without any signal of danger, in that highway. -No questions other than those touching the negligence of the defendant and the contributory negligence of the plaintiff are brought before us by the appellant.

The facts upon which the judgment is based are that the plaintiff was driving his vehicle, between 8:30 and 9 o’clock in the evening of July 1,1895, it being, at the time, quite dark; that the defendant was engaged, during the daytime, in repairing the sidewalks of the park, and had left piles of aspalt in the gutters of the roadway, at the locality of the accident, with a light upon each pile. The bank of sand and gravel, which caused the damage, had been deposited by the defendant ’ midway between two piles of asphalt, each being 20 feet, respectively, from such bank; but the latter was 4 feet from the gutteq and thus nearer the mid-die of the road than, were the asphalt piles. This sand and gravel mound was, in appearance, like the bed of the road, and the plaintiff, proceeding in a line paralled with the lighted piles, drove upon it, without having any warning of his danger,

We fail to find any reason for this appeal upon the facts, since the justice belo.w could most properly find, from-the evidence, that the defendant was negligent in its manner of maintaining the locality, thus rendered dangerous by the work in progress, and that the plaintiff used due care under the circumstances. There is no reason why the plaintiff’s testimony in this case should not have been believed by the justice, and that testimony quite fairly shows an absence of any contributory negligence.

Judgment affirmed, with costs.