GRACE DOUGHERTY, an Infant, by GRACE DOUGHERTY, Her Guardian ad Litem, Appellant,
THE CITY OF NEW YORK and WILLIAM BRADLEY, Respondents.
APPEAL by the plaintiff, Grace Dougherty, an infant, etc., from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 14th day of February, 1911, upon the dismissal of the complaint by direction of the court as to the defendant The City of New York at the close of the plaintiff's case on a trial at the New York Trial Term, and as to the defendant Bradley at the close of the whole case.
William H. Griffin [Martin T. Manton with him on the brief], for the appellant.
Loyal Leale [Theodore Connoly with him on the brief], for the respondent The City of New York.
Max Altmayer, for the respondent Bradley.
About eight o'clock in the morning of the 24th day of August, 1907, plaintiff was lawfully passing westerly along the southerly sidewalk of Delancey street, borough of Manhattan, New York, and when in front of No. 117, which is a little more than one block west of the Williamsburg bridge, a flagstone, forming part of the sidewalk, upon which she stepped, sank into an excavation made by the defendant Bradley for the construction of the Williamsburg bridge loop subway, carrying her down with it, and she sustained injuries to recover for which this action was brought. She charges negligence on the part of the defendant Bradley in leaving the sidewalk unsupported after making the excavation, and on the part of the city in failing to discover that the walk was in a dangerous condition, and to restore it to a condition of safety before the accident. The dismissal of the complaint can be sustained only upon the theory that as matter of law the plaintiff was guilty of contributory negligence, or that no negligence was
shown on the part of the defendants which caused or contributed to the accident.
It does not appear whether the defendant Bradley was the original contractor for the excavation for the subway, or a sub-contractor, or with whom he contracted; nor were the plans for the work introduced in evidence. It appears to have been assumed, however, that the work was subway construction work and was authorized. It was shown that the defendant Bradley did the excavation work, and that upon him primarily rested the duty of protecting the sides of the excavation, by sheathing or otherwise. Evidence was introduced on the part of the defendant Bradley tending to show that the work was carefully done, and that the side of the excavation, at the point where the accident happened, was properly protected by sheath piling; but that evidence was not uncontroverted. Evidence was offered on the part of the plaintiff tending to show that the southerly side of the carriageway of the street was excavated to about the curb line, or the line of the outer stones of the sidewalk to a depth of twenty to forty feet; that the side of the excavation next to the sidewalk was perpendicular, and that at the point where the flagstone sank down and slid into the excavation it was unprotected by sheathing or otherwise. The street had been widened nearly sixty or seventy feet some years before, and in tearing down the old tenement buildings and stores that occupied the space where the sidewalk now is, the cellars were filled or left filled in with rubbish, refuse and barrels. This was the nature of the support of the sidewalk to the depth of about ten feet, and it was plain to be seen, and was observed by those in charge of the excavation work for the defendant Bradley. The excavation work on the southerly side of the street had been finished from a month to six or seven weeks, and a bridge had been constructed by another contractor over the excavation to accommodate the traffic, while the defendant Bradley was excavating the northerly side of the street where the work was progressing at the time of the accident. The defendant Bradley had no part in the construction of the bridge work, but there is nothing to show that it in any way contributed to the accident. There is also evidence tending to show that the subway
was to occupy one-half of the space under the sidewalk on the southerly side of the street, and that the sidewalk as well as the carriageway on the southerly side of the street at this point for a distance of about twenty-five feet immediately easterly of the place where the accident occurred consisted of planking, and there is evidence indicating that the excavation extended under this planking and that it was into this excavation that plaintiff slipped, but there is a conflict in the evidence in this regard. The uncontroverted evidence shows that the sidewalk and the side of the excavation where the accident occurred remained in the same condition from the time the defendant Bradley completed the excavation work on that side of the street until the accident. The permanent sidewalk at this point westerly of said planking consisted of three rows of flagstones, each about three or four feet square. The plaintiff first passed over this planking, forming the sidewalk, for a distance of some twenty-five feet, and she then stepped from the planking onto the outer flagstone of the walk, which instantly gave way. It had rained hard the night before, had been raining during the morning, and was raining at the time of the accident. The evidence on the part of the plaintiff shows that the flagstone slipped into the excavation, carrying her with it, and that she went down about twenty or twenty-five feet. On the part of the defendant Bradley the evidence tends to show that this made filling under the sidewalk settled down owing to the rain, forming a hole about six or seven feet in depth back of the sheathing, and that neither the plaintiff nor the flagging went through the sheathing into the excavation. The uncontroverted evidence shows that the sidewalk appeared to be safe.
The plaintiff was eighteen years of age. She resided in Brooklyn, but was employed as a silk winder on Crosby street, and was on her way to work. The sidewalk was crowded by people hurrying to and fro. It is manifest that she was not guilty of contributory negligence as matter of law. There is no evidence of actual notice to the city of the conditions which rendered the sidewalk unsafe. In view of the fact that the sidewalk ...