Folger, J.
There is no doubt but that the cause of the injury to the plaintiff was the mailing of the excavation in the street, and neglecting to so cover it as that loaded vehicles could pass over it in safety ; or in neglecting to warn and turn away loaded vehicles from attempting passage there while it was insufficiently covered. There is no claim or pretence that the negligence of the plaintiff contributed to the injury.
In this state of facts, it may be that the municipality, having authorized the excavation and having notice that it was going on, and Riss, the person who actually made and left it, were each liable to the plaintiff for the injury suffered. It is not needed that we pass upon that. The question now is, does anything appear in the record which makes the defendant liable to the plaintiff? A liability may arise in two ways : First, from the defendant’s having contracted with the municipality to do, in stead of it, the duty which was upon it, to keep the street safe for the passage of the public ; and by neglect to do that duty, having given cause of action against the municipality for neglect; then action will be directly against the defendant therefor, instead of first against the municipality, so as to avoid circuity of action ;
(City of Brooklyn
v.
Brooklyn City R. R.,
47 N. Y., 475); and Second, from the defendant’s voluntarily interfering and undertaking to make the way safe, and so inefficiently doing it as to leave it unsafe, and, at the same time, so as to permit and tempt passage over it.
For the purpose of showing the first named of these grounds of liability, a contract was put in evidence, between the defendant and the municipality, by which the defendant agreed to keep the streets in and about the rails in repair. The phrase in the contract is this : “ Shall pave the street in and about the rails in a permanent manner, and keep the same in repair ; ” and we think that “ the same ” which is to be kept in repair is “ the streets.” It is plain that the street was not in repair at the
place where the wheels of the plaintiff’s truck went down. The phrase “keep in repair ” is to be construed with reference to the object to which it has been applied. To keep a street in repair is to have it in such state as that the ordinary and expected travel of the locality may pass with reasonable ease and safety. A street in a city is not kept in repair, if it is founderous, or has in it a trench, into which carriages may go and harm follow. The duty to keep in repair is to be performed at once, on the arising of the occasion for repair, or the doing of it put off for a reasonable time, if the nature of the occasion warrants delay. In the latter case, the duty to keep in repair carries with it the duty to guard the public against harm from the repair being delayed. This may be done by placing barriers by day, and barriers and lights by night, about the defective place; or some temporary expedient, sufficient for the time, may be used, such as a bridge over the opening or founderous place. Neither of these things were effectually done by the defendant. Was it under the duty to do one or the other of them ? We think that it was.
(Beach
v.
Grain, 2
N. Y., 86.) We have seen that it was under the duty to keep the street in repair, but not the whole of the street. Only that part “
in and about
” the rail. Clearly all the space within the defendant’s. rails fell within its agreement. Now the defective place in the street was within the two outside rails of the defendant’s tracks. But we need not put so wide a construction as that upon the agreement. “In and about” the rails means, at least, within the two rails of each track and some space outside of each rail. Beyond doubt, it means so far outside as the street surface was disturbed in the act of laying the track. No evidence was given how far such space extended, so that requirement cannot be applied here with exactness. In the absence of such evidence, the word must have a reasonable' interpretation, and be let to cover so much ground as it would be fair to consider would be used by the defendant, from time to time, for its purposes of repair to the ■ tracks, and the like. The proof was that the . off-wheels of
the truck of the plaintiff were in the groove of one rail, and that the near-wheels were outside the other rail about one foot. Now, a space of twelve inches from the outside of each rail is not too great to be taken as the extent to which the defendant used the street, outside each rail, in laying their track, and, from time to time, in repairing it. It is not an unjust or strained interpretation that1 ‘ about the rails ” includes as much of the street as one foot outside of them.
Nor do we think that the-fact that Riss was the licensee of the city to make the trench absolved the defendant from liability to protect the public. The contract with the city was made in view of all the customary uses to which the streets and their appendages are put, from time to time. That contract put the defendant in the place of the city, to repair the streets after such use, if they then needed repair, and to guard against harm while they necessarily remained out of repair. Now, one of the appendages of this street was the main sewer through it; and one of the customary uses of the street was to make and enjoy side drains into that main sewer. Almost as necessary to a property owner on the street, is a use of the main sewer, as is a use of the street ; and almost as frequent and continuous. And the contract contemplated that use; and the means customary to avail thereof. And for repair of damage to the street, arising therefrom, the defendant undertook with the city. It will not be denied that the defendant is bound to keep in repair from the use of the street with teams and vehicles ; nor but that, although the city is also- bound to do the same, the defendant is liable to one harmed by a neglect to repair. It is just as much bound to repair, or protect from wrant of repair, when the need of repair arises from a lawful, customary, anticipated and probable use of the street, though not as frequent, nor by such multitude of people.
There was then the duty upon the defendant, to the public and to this plaintiff, to keep the street in repair, just at the place where his wheels went down, or to warn away therefrom.
This duty was not efficiently performed. It was undertaken, and in such way as to lead the plaintiff to suppose that passage there was safe. Two planks, or joists, or timbers were put down, in size seven inches by five inches, with the seven inch side up. That made á width of fourteen inches. It is probable that the material was sufficient in strength to bear a heavy vehicle. The defect seems to have been in the infirmity of the fastening them in place
•
for the timbers did not break, but the wheels went between them, tearing off the edges of them ; and it would seem that the outer one slid away from the inner one, under the weight of the truck, and that thus it: was let down. The neglect was in not fastening the timber at first, or in not again fastening it, when the adjoining surface of the street had fallen into the trench. Thus it appears that the duty was upon the defendant to keep that place in the street in repair ; and that there was enough in the evidence to warrant the jury in finding that there was negligence in performing it.
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Folger, J.
There is no doubt but that the cause of the injury to the plaintiff was the mailing of the excavation in the street, and neglecting to so cover it as that loaded vehicles could pass over it in safety ; or in neglecting to warn and turn away loaded vehicles from attempting passage there while it was insufficiently covered. There is no claim or pretence that the negligence of the plaintiff contributed to the injury.
In this state of facts, it may be that the municipality, having authorized the excavation and having notice that it was going on, and Riss, the person who actually made and left it, were each liable to the plaintiff for the injury suffered. It is not needed that we pass upon that. The question now is, does anything appear in the record which makes the defendant liable to the plaintiff? A liability may arise in two ways : First, from the defendant’s having contracted with the municipality to do, in stead of it, the duty which was upon it, to keep the street safe for the passage of the public ; and by neglect to do that duty, having given cause of action against the municipality for neglect; then action will be directly against the defendant therefor, instead of first against the municipality, so as to avoid circuity of action ;
(City of Brooklyn
v.
Brooklyn City R. R.,
47 N. Y., 475); and Second, from the defendant’s voluntarily interfering and undertaking to make the way safe, and so inefficiently doing it as to leave it unsafe, and, at the same time, so as to permit and tempt passage over it.
For the purpose of showing the first named of these grounds of liability, a contract was put in evidence, between the defendant and the municipality, by which the defendant agreed to keep the streets in and about the rails in repair. The phrase in the contract is this : “ Shall pave the street in and about the rails in a permanent manner, and keep the same in repair ; ” and we think that “ the same ” which is to be kept in repair is “ the streets.” It is plain that the street was not in repair at the
place where the wheels of the plaintiff’s truck went down. The phrase “keep in repair ” is to be construed with reference to the object to which it has been applied. To keep a street in repair is to have it in such state as that the ordinary and expected travel of the locality may pass with reasonable ease and safety. A street in a city is not kept in repair, if it is founderous, or has in it a trench, into which carriages may go and harm follow. The duty to keep in repair is to be performed at once, on the arising of the occasion for repair, or the doing of it put off for a reasonable time, if the nature of the occasion warrants delay. In the latter case, the duty to keep in repair carries with it the duty to guard the public against harm from the repair being delayed. This may be done by placing barriers by day, and barriers and lights by night, about the defective place; or some temporary expedient, sufficient for the time, may be used, such as a bridge over the opening or founderous place. Neither of these things were effectually done by the defendant. Was it under the duty to do one or the other of them ? We think that it was.
(Beach
v.
Grain, 2
N. Y., 86.) We have seen that it was under the duty to keep the street in repair, but not the whole of the street. Only that part “
in and about
” the rail. Clearly all the space within the defendant’s. rails fell within its agreement. Now the defective place in the street was within the two outside rails of the defendant’s tracks. But we need not put so wide a construction as that upon the agreement. “In and about” the rails means, at least, within the two rails of each track and some space outside of each rail. Beyond doubt, it means so far outside as the street surface was disturbed in the act of laying the track. No evidence was given how far such space extended, so that requirement cannot be applied here with exactness. In the absence of such evidence, the word must have a reasonable' interpretation, and be let to cover so much ground as it would be fair to consider would be used by the defendant, from time to time, for its purposes of repair to the ■ tracks, and the like. The proof was that the . off-wheels of
the truck of the plaintiff were in the groove of one rail, and that the near-wheels were outside the other rail about one foot. Now, a space of twelve inches from the outside of each rail is not too great to be taken as the extent to which the defendant used the street, outside each rail, in laying their track, and, from time to time, in repairing it. It is not an unjust or strained interpretation that1 ‘ about the rails ” includes as much of the street as one foot outside of them.
Nor do we think that the-fact that Riss was the licensee of the city to make the trench absolved the defendant from liability to protect the public. The contract with the city was made in view of all the customary uses to which the streets and their appendages are put, from time to time. That contract put the defendant in the place of the city, to repair the streets after such use, if they then needed repair, and to guard against harm while they necessarily remained out of repair. Now, one of the appendages of this street was the main sewer through it; and one of the customary uses of the street was to make and enjoy side drains into that main sewer. Almost as necessary to a property owner on the street, is a use of the main sewer, as is a use of the street ; and almost as frequent and continuous. And the contract contemplated that use; and the means customary to avail thereof. And for repair of damage to the street, arising therefrom, the defendant undertook with the city. It will not be denied that the defendant is bound to keep in repair from the use of the street with teams and vehicles ; nor but that, although the city is also- bound to do the same, the defendant is liable to one harmed by a neglect to repair. It is just as much bound to repair, or protect from wrant of repair, when the need of repair arises from a lawful, customary, anticipated and probable use of the street, though not as frequent, nor by such multitude of people.
There was then the duty upon the defendant, to the public and to this plaintiff, to keep the street in repair, just at the place where his wheels went down, or to warn away therefrom.
This duty was not efficiently performed. It was undertaken, and in such way as to lead the plaintiff to suppose that passage there was safe. Two planks, or joists, or timbers were put down, in size seven inches by five inches, with the seven inch side up. That made á width of fourteen inches. It is probable that the material was sufficient in strength to bear a heavy vehicle. The defect seems to have been in the infirmity of the fastening them in place
•
for the timbers did not break, but the wheels went between them, tearing off the edges of them ; and it would seem that the outer one slid away from the inner one, under the weight of the truck, and that thus it: was let down. The neglect was in not fastening the timber at first, or in not again fastening it, when the adjoining surface of the street had fallen into the trench. Thus it appears that the duty was upon the defendant to keep that place in the street in repair ; and that there was enough in the evidence to warrant the jury in finding that there was negligence in performing it.
But the other ground of liability also exists. The defendant knew of the existence of the dangerous place. Grant that it was not bound to repair it; yet it had a right to make it passable for its own vehicles and teams. The exercise of this right carried with it a duty. In the exercise of it it was bound not to harm others or lead them to harm. The defendant volunteered to make passage safe over the excavation. In attempting so to do, it gave • the place the appearance
of
safety, while, as the event proves, it was really insecure, delusive and misleading. It would have been better for the plaintiff had the defendant left the trench made by Biss altogether uncovered ; for the open gap in the roadway would have been apparent to him, and he would have avoided it. By undertaking to make a safe way of passage, and failing to entirely do so, and yet making the show of a safe way, the defendant misled the plaintiff to his harm, and must answer to him for his damage. They had a right to do what they did, had they done it well. It was necessary for the use by them of their own property. But having
begun, they were bound to do it in a proper manner for the public.
(Manley
v.
St. Helen’s Canal Co., 2
H. & N., 840;
Drew
v.
New River Company,
6 Carr. & Payne, 754.)
The defendant is, upon general principles and upon the facts of the case, liable to the plaintiff. It remains to be seen Avhether there Avere any errors in the conduct of the trial calling for a reversal of the judgment.
There was no error in admitting in evidence the agreement between the defendant and the municipality. That was material and proper, to show that there Avas undertaken by the defendant the duty which lay primarily upon the city to give the public, and the plaintiff, as one thereof, a safe passage through the thoroughfares. The reception of the agreement in evidence did not change the cause of action from one arising in tort to one based upon contract. It showed the duty of the defendant, and made applicable the other facts of the case, to shoAV its negligence of duty, wherein it was tortious.
It follows from Avhat we have said that it was no error not to charge that it was not the duty of the defendant to uphold the street against all excavation beyond its track and bridge, as actually built. It was its duty to uphold the street about, and that means beyond its rails. The evidence shows that the Avheels of the plaintiff’s truck went down, not beyond, but between two timbers of its bridge.
So it is Avith the refusal to charge the supposition, that if the defendant constructed and maintained a strong and safe bridge betAveen its tracks, and about fourteen inches on each side of them, and the injury Avas occasioned by an excavation under and beyond such bridge, it Avas not liable. The court had already charged that the defendant Avas not liable for an excavation beyond the limits fixed by the contract, but it held, as matter of law, that the injurious excavation was within that limit. And we have agreed therein.
The point that there was error in submitting to the jury the question, whether the contract did not require the defendaut to make the street secure for the whole space between its
two tracks, does not arise. The court made not that submission.
We need not further particularize. The points of the defendant, made on the argument here, are answered by the general considerations as here presented.
The judgment should be affirmed.
Church, Ch. J., Andrews and Miller, JJ. concur.Rapadlo, Earl and Hand, JJ., dissent.
Judgment affirmed.