Manney v. Curtis (113 A.D. 421, 1906)

Hirschberg, P. J.:

The appellant's were engaged in delivering coal on the evening of October 8, 1900, at a building on the northwest corner'of Broadway and Chambers street in the borough of Manhattan. In male-, ing the delivery, their driver had backed a walgon to the curb on the north side of Chambers street, some distance west of the Broadway. line, and had taken the cover from a. coal hole in the sidewalk, through which hole the delivery, was made. The plaintiff was injured by falling into the hole, and his recovery is for damages thereby sustained'. While the main question of negligence was sharply contested, the jury, adopting the plaintiff’s theory or version of the occurrence, vras clearly justified in rendering the verdict.

On the plaintiff’s showing, it would seem that shortly before the accident all the coal had been dumped from the cart through the .coal hole, but the hole whs still left uncovered and unguarded. There was no light in the vicinity which, would serve to indicate" the existence and location of the hole to a pedestrian.. The night was dark, drizzly and rainy, with wind blowing- from the eastward. The plaintiff was walking easterly, with an umbrella over 1ns head 'slightly tilted tti the front. There was. no coal loose around the opening or anything else calculated to warn the plaintiff of Iris peril. An ordinance of the city required the opening in the sidewalk, while 'the covering was removed, to. be* inclosed' with a strong box, or curb at least twelve inches, high, and it was undisputed that no such protection, had been afforded at the time in question. The appellant’s driver appears at the time of the accident to'have been sitting on the curb a few feet west of the cart. In the circumstance's stated it is quite apparent that the appellants were guilty