Opinion
March 14, 1913.
J. Franklin Tausch, for the appellant.
William A. Jones, Jr., for the respondent Coffin.
James J. Mahoney, for the respondent Wagner.
Whether the areaway was within the street lines or wholly upon the premises owned by the defendant Coffin and leased by the defendant Wagner, it was contiguous to the traveled sidewalk and it was the duty of the owner and lessee to see to it that the excavation was properly and reasonably guarded, for the presence of a deep excavation along the lines of the sidewalk, unless sufficiently guarded, necessarily created danger. ( Donnelly v. City of Rochester, 166 N.Y. 315, 319.)
Whether the railing erected by the owner was a reasonably safe protection, considering the fact that children as well as adults were likely to use the sidewalk, was primarily a question for the jury (Id.), for unless the evidence is so plain that reasonable men might not reach adverse conclusions upon the subject a question of fact is presented for submission for the jury. ( Erickson v. Twenty-third Street R. Co., 71 Hun, 108.) Upon the evidence as it stood when the complaint was dismissed, we think that reasonable men might well differ as to the sufficiency of the railing. It was, therefore, error to dismiss the complaint.
The judgment and order should be reversed and a new trial granted, with costs to appellant to abide the event.
INGRAHAM, P.J., LAUGHLIN, CLARKE and DOWLING, JJ., concurred.
Judgment and order reversed, new trial ordered, costs to appellant to abide event. Order to be settled on notice.