I think the trial court erred in dismissing the complaint, and that for that reason the judgment should be reversed and a new trial ordered. The motion to dismiss having been made upon the complaint and opening of plaintiff’s counsel, all of the facts stated in the complaint and opening must be taken as true. The complaint, so far as the same is material, reads as follows : “ Third. Upon information and belief, that for many days prior to said date the defendant had negligently permitted an excavation to be made under the premises and the sidewalk of the premises known as Ho. 230 East 110th street, *323between said avenne, of the depth of between six and eight feet, and of the width of over fifteen feet, so that persons passing by said premises on said sidewalk could not walk over said sidewalk, but were compelled to go around into said street and around a pile of dirt about six feet high, which had been thrown from said premises and excavation into the said street, and negligently allowed to remain there, and the defendant not requiring to be erected or itself erecting a bridge over said excavated sidewalk as it lawfully should have done. Fourth. That the above-named decedent, being about eight years of age, on said day was a pupil at a public school situated about fifty feet from said excavation and upon the same side of said street, and that while lawfully going to said school from his residence, between half-past twelve and one o’clock of said day, was compelled to go around said pile of dirt by reason of such excavation, and while so doing he was run over by a passing vehicle and immediately killed. That said pile of dirt so obstructed said decedent’s view that he could not see said vehicle until he was within a very short distance therefrom, nor could the driver of said vehicle see said decedent. That said death was caused solely through the negligence of the defendant, and without any negligence whatever on the part of the said decedent, said defendant permitting said earth to be so piled up and thereby obstructing the view of the said decedent, and negligently omitting to place a bridge over said excavation, or causing a bridge to be so placed as aforesaid.” And the plaintiff’s counsel, in opening the case to the jury, said: “ That for two weeks prior to the 9th of December, 1896, an excavation had been made before the premises 230 East 110th street in the city of Hew York, which is a street regularly opened and patrolled by the police. That excavation was six feet deep and about 20 feet wide, and reached from the building to the curb, and there was no bridge over it. The earth which was taken from this excavation had been cast up into the roadway directly in front of the excavation, and it formed a mound six or seven feet high and the width of the excavation — about twenty feet — and reaching from the curb to the car track which runs through the street. The plaintiff’s intestate, Joseph Storey, was attending a school which was 50 feet away from this excavation, and on the same side of the street as the excavation. So you will see that the *324children attending that school, which was attended by over 2,000 children, were obliged to go around this mound. There was no bridge over the excavation. On this 9th day of December, under circumstances which the Court will charge you would be concurrent negligence, or negligence coupled with the act on the part of the city, this Joseph Storey went around, or started to go around, the corner of that mound of earth, and he was knocked down and run over by a butcher’s wagon, which, by reason of the fact that the mound being six feet high and directly out of this car track, he was unable to see, and the driver of the wagon was unable to see him. The boy died inside of an hour, and for his death we bring this action. I understand the death as the result of the accident is admitted.”
Assuming the facts stated in the complaint and in the opening to be true, I am of the opinion that the case is then brought directly within the principle laid down in Ring v. The City of Cohoes (77 N. Y. 83). The court there held that “ when two causes combine to produce an injury to a traveler upon a highway, both of which are in their nature proximate — the one being a culpable defect in the highway, and the other some occurrence for which neither party is responsible — the municipality is liable, provided the injury would not have been sustained but for such defect; ” and “ when several proximate causes contribute to an accident, and each is an efficient cause, without the operation of which the accident would not have happened, it may be attributed to all or any of the causes, but it cannot be attributed to a cause unless, without its operation, the accident would not have happened.” This principle was followed and applied in Ehrgott v. The Mayor (96 N. Y. 264) and in Lowery v. Manhattan Ry. Co. (99 id. 158). In the former case, by reason of a defect in a public street, the axle of plaintiff's carriage was broken and he was dragged partly over the dashboard; he then procured another carriage and drove several miles in the cold and rain. His evidence showed that the injury complained of was due to the strain and shock caused by being dragged over the dashboard, while defendant’s, evidence showed that it resulted from the subsequent exposure. The jury found that the injury was caused by or resulted from both. The court held that a recovery was justified whether the injury proceeded from the strain and shock or from the subse*325quent exposure, or both. And in the latter, fire fell from a locomotive on defendant’s road upon a horse attached to a wagon in the street below and upon the hand of the driver. The horse became frightened and ran away, the driver attempted to drive him against the curbstone to arrest his progress, the wagon passed over the curbstone, threw the driver out, and the plaintiff, who was on the sidewalk, was run over and injured. The court held that the plaintiff was entitled to recover on the ground of defendant’s negligence.
I am unable to perceive any distinction in principle between the cases cited and the one at bar. Had it not been for the excavation in the sidewalk there would have been no occasion for the intestate going into the street, and the jury would have had a right to infer that he would not have done so. The defendant permitted the incumbrance to remain in the street. This was an unlawful act on its part, and it must be held responsible for the natural and proximate consequences resulting therefrom. Whether the death of the intestate was due to, and resulted from, the defendant’s unlawful act was, under the facts stated in the complaint and counsel’s opening, a question for the jury. (Ehrgott v. The Mayor, supra; Milwaukee & St. Paul Ry. Co. v. Kellogg, 94 U. S. 469.)
I think the judgment should be reversed and a new trial granted, with costs to the appellant to abide the event.
Patterson, J., concurred.
Judgment affirmed, with costs.