p. 342Before Sedg-Wick, Ch. J., Freedman and Tbuax, JJ.Appeal from judgment of $3,374.48, entered in favor of the plaintiff upon the verdict of a jury.
The plaintiff, a lady residing in West Twentieth street, in this city, between Seventh and Eighth avenues, while walking, on the evening of January 31, 1878, in company with her daughter, toward the east side of the city, along the south side of Twentieth street, in attempting to cross Seventh avenue, fell into a cut or trench on Seventh avenue, which extended •along the east side of said avenue for a considerable distance.
William Q. Whitney, counsel for the corporation, and David J. Dean, of counsel for appellants, in support of the propositions:
That the defendants are not responsible for the removal of the barricade or its consequences ; that an “ omission to watch the barrier after it was put up, is not such negligence on the part of the corporation as will sustain a recovery by the plaintiff that “if the place was well and sufficiently guarded by barricades, lights were unnecessary, and to omit them would not be negligence,” cited Parker v. Cohoes ( 74 N. Y. 610 ; 10 Hun, 531 ); Dougherty v. Inhabitants of Waltham ( 4 Gray, 596 ); McGinity v. Mayor of New York ( 5 Duer, 674 ); Griffin v. Mayor of New York ( 9 N. Y. 456 ).Richard O'Gorman, attorney, and of counsel, for respondent, urged:
I. As to the direct responsibility of defendants, the attention of the court is respectfully directed to a clear exposition of the law on the subject, to be found in McDermot v. Kingston ( 6 Abb. N. C. 246 , 250, 253).II. The question whether either the foreman or the
p. 343night-watchman were guilty of negligence which contributed to the accident, was clearly for the jury. On this subject defendants relied below on Parker v. Cohoes, &c., 74 N. Y. 610 ; affirming S. C., 10 Hun, 531 . The case is not in point, and the distinction between it and the case at bar is well marked. In Parker v. Cohoes, the defendants were water commissioners, and in the performance of their duties, as such, they caused a certain street to be obstructed. At the close of the day they put up barriers extending across the street, and shown to be sufficient to give notice to citizens of the danger of attempting to pass. Soon after-wards one of the barriers was removed by some person without the plaintiff’s knowledge, and the plaintiff drove his carriage through the opening and was injured. It was proved in that case that the barricade, if left as constructed, would have excluded all passers from the street. Defendants there had no reason to anticipate wrongful acts on the part of others, and hence were not required to guard against them. The case at bar is wholly different in all its features. There is no evidence here that the barricade, if put up at all, was sufficient to give notice to citizens of the danger. There was every reason to anticipate that the barrier would be removed. The watchman was well aware that the danger of the removal of the barrier at this point was imminent and incessant up to .twelve, o’clock at night. Mischievous boys were in the habit of knocking the barrier down. The barricades were very often disturbed in this way. On the very night in question he had chased, such boys away from the barrier, but despite of this knowledge that the barrier was likely to be removed, and this place rendered surely dangerous, and likely to become at any moment the scene of grievous injury to citizens, he leaves it wholly unguarded, and betakes himself to the other side of the avenue for shelter, leaving the plaintiff to walk, with
p. 345point. Gorham v. Trustees of Cooperstown, 59 N. Y. 660 : a sleigh, struck a piece of wood hidden in the snow; how long it had been there did not appear ; there was no notice to the defendants. Griffith v. Mayor, &c., 9 N. Y. 456 : the circumstances did not show notice to the city of the existence of the obstruction. McGinty v. Mayor, 4 Duer, 674 : a person walking on sidewalk put his foot on a coal-cover, which turned over with him, and he was hurt. The chain, which had secured the cover, was found to be broken, but no evidence when or how long. No notice to the city.These cases have no likeness to the case at bar.At the trial, the-proof showed that the cut had existed for some time-before the accident, and that the purpose for which it had been dug was to put in Croton w&ter pipes. The work, under the statutes applicable, was presumably done by the defendants through the department of public works, and as no defense has been set up in the answer to the effect that in fact it was done by independent contractors, it must be held, for the purposes of this case, that it was done by the defendants themselves.
It was, therefore, not necessary for the plaintiff to prove express or implied notice to the defendants of the existence of the cut as a nuisance. On the other hand, the cut was not a nuisance per se, because it was. made pursuant to lawful authority. But as the defendants were directly engaged in the prosecution of the work, they must be held answerable for negligent performance causing injury. True, they were not insurers of the safety of all persons who, during the progress of the work, had occasion to pass upon, along, or across, the said avenue, but they were bound to exercise proper care and precaution, with the view off rendering the passage of all such persons safe. What constituted such care and precaution must necessarily
p. 346be determined upon the peculiar facts of the case, for negligence is always relative as to time, place, person and surrounding circumstances. Protection to persons using .ordinary care and prudence on their part, is all that is required, and if that is sufficient under all the circumstances, it matters not what means are employed .to that end.
The defendants, at the trial, principally relied for their exoneration upon the fact that, at the close of ■each day’s work, inclusive of the evening of the accident, the requisite protection was provided by the erection of a substantial and sufficient barricade along the side of the out. The plaintiff, on the other hand, gave •proof showing that, at the time of the accident, there was no barricade at or near the spot where she fell into the cut. The question of the existence of the barricade at the precise time and place was, therefore, a question for the jury, and so was the question as to its character and sufficiency.
But if, under all the circumstances of the case, including the nature and extent of the excavation, the character of the locality, the state of travel upon the avenue and the intersecting streets, the character of the barricade and the manner of its construction, and the dangers to which it might be reasonably expected to be exposed if left unguarded by watchmen, the barricade as actually put up at the close of each day’s work, including the evening in question, was a sufficient protection to persons using ordinary care and prudence on their part, then the defendants cannot be held responsible for its removal by the mischievous ■or wrongful acts of third persons of which they had no notice, though no watchman was employed for the special duty of standing guard, and they were entitled to have the jury instructed to this effect. They were also entitled to have the jury instructed, as they requested, that if the place was well and sufficiently
p. 347guarded by barricades, lights were unnecessary, and to omit them would not be negligence. There are cases in which it is said, in general terms, that dangerous points in the highway should be barricaded
and lighted ; but such language was so employed to declare the rule that dangerous places in the public highway should be well and sufficiently guarded. If well and sufficiently guarded by barricades, lights are unnecessary, and then to omit them is not negligence.
The foregoing views were enforced in Parker v. City of Cohoes ( 10 Hun, 531 ; affirmed by the court of appeals, in 74 N. Y. 610 ); and under the decision of that case, the refusal of the learned judge below to instruct the jury upon the points referred to, as requested, constituted error.
The case of McDermett v. City of Kingston ( 6 Abb. N. C. 246 ), relied on by the respondent, was reversed by the general term, as appears from the report in 19 Hun, 198 .
The judgment should be reversed, and a new trial ordered, with costs to appellants to abide the event.
Sedgwick, Ch. J., and Truax, J., concurred.