The plaintiff was a laboring man living on Rhode Island street in the city of' Buffalo. In November, 1895, he was working on the Ellicott Square Building, which is two miles from his home; he was accustomed to leave for his work early in the morning, returning after dark, so he had only a general knowledge of the torn up condition of the street; he knew a main sewer was being put in the street, and that the street was dug up for that purpose, but testified he was ignorant of the lateral trench running from the main sewer into the new building- fronting on the street. There was no guard or barrier or light at the point where this excavation intersected the walk; and a traveler,'using the sidewalk, was dependent for light upon that coming from the electric lamp, which was in a measure obscured by the intervening poles. The earth that had been thrown upon the sidewalk from the excavation had been partially removed, leaving a clear space in the center of the walk of about two feet in width, With dirt upon each side. This was the condition toward the trench, except that the dirt immediately adjacent to it was allowed to remain, leaving a pile, extending across the walk, of from fifteen to eighteen inches in height. The plaintiff observed this pile of dirt and stepped over it and into the ditch, sustaining severe injuries.
It is evident the defendant was guilty of negligence in permitting this dangerous excavation to remain unguarded and without a light to warn travelers of the situation. The trend of authority is uniform that the duty is urgent upon municipal authorities to guard the streets and highways, for the protection of people using them, where improvements are in progress. (Turner v. City of New-*446burgh, 109 N. Y. 301; Pettengill v. City of Yonkers, 116 id. 558; Bryant v. Town of Randolph, 133 id. 70; Brusso v. City of Buffalo, 90 id. 679.)
And assuming this lateral trench was excavated by a private individual, instead of under the direction of the city authorities, its-existence for eight days in its unprotected condition was amply sufcient to justify the jury in finding that the authorities ought to have known of its situation. (Turner v. City of Newburgh, supra; Kunz v. City of Troy, 104 N. Y. 344, 349.)
The trial court granted the nonsuit on the ground that, when plaintiff discovered the pile of dirt across the sidewalk, it was his duty “ to stop and find out what it was,” and his omission to do this-constituted contributory negligence as a matter of law. While the case is a somewhat close one I am convinced this was error.
The question of contributory negligence can never be determined abstractly, but its solution is always dependent upon the circumstances surrounding the accident. What may charge a wayfarer with carelessness in one instance, in another may render him free from any imputation of that kind. In this case we start with the proposition, clearly .demonstrated at the termination of plaintiff’s, case, that the city was negligent. That patent fact must be taken into consideration when we - are considering the conduct of the plaintiff. The city had permitted an unguarded excavation, six feet deep, to remain for eight days without a barrier, without a light, without anything to warn or to indicate to an approaching traveler he was liable to be precipitated to the bottom of this trench.
Again, the wayfarer was lawfully upon the sidewalk ; he was not-called upon to anticipate danger; he had a right to assume the way was safe, and that the municipal authorities had fulfilled their duty to keep the street in a suitable condition for the public to travel upon. This is not a mere perfunctory declaration of the courts, but it is a vital principle, mitigating the vigilance often exacted of a person under other circumstances. The rule is well stated by Judge Finch in McGuire v. Spence (91 N. Y. 303, at p. 305): “ He who approaches a railroad crossing approaches a place of danger, and he must look and listen, for he is bound to anticipate a possible harm. But one who passes along a sidewalk has a right to presume it to be safe. He is not called upon to anticipate danger, and is not *447negligent for not being on his guard. Whoever left this area in the sidewalk open and uncovered was guilty of a positive wrong. It amounted to an obstruction of the street. It was a trap set for the unwary, or for those hurried or inattentive. Nobody was bound to anticipate its existence or to look for it, although it was visible. The plaintiff, therefore, was bound to no special care to avoid such an accident as happened, and the jury were justified on the facts in finding her free from negligence.” (Chisholm v. State, 141 N. Y. 246; Scanlon v. City of Watertown, 14 App. Div. 1, 5; Pettengill v. City of Yonkers, 116 N. Y. 558, 564.)
This principle, extending protection to the traveler in a street, has been held to he operative even though he was familiar, in a general way, with the dangerous condition of the street, but his attention was temporarily diverted elsewhere. (Driscoll v. Mayor, 11 Hun, 103; Evans v. City of Utica, 69 N. Y. 166.)
The plaintiff was approaching a dangerous excavation, of which he was ignorant; he was where he had a right to indulge the presumption that no peril was to be apprehended. The conditions surrounding him, instead of arousing suspicion of danger, might well have confirmed the assumption the way was safe. The dirt had been taken off the middle of the walk, leaving a clear space of two feet, in the center, indicating this was designed for the traveling public. Why leave that open space unless intended for that purpose ? He knew the street had been torn up, a sewer pipe laid, and the dirt in the main thrown back in the trench; so, apparently, there was no obstruction to his course. In this situation we cannot say as a matter of law that he was negligent becaxrse he- did not regard this fringe of dirt as a warning of danger. This was for the jury to-decide. (Weed v. Village of Ballston Spa, 76 N. Y. 329 ; Driscoll v. Mayor, 11 Hun, 101; Schafer v. The Mayor, 154 N. Y. 466, 471, et seq.)
The learned trial judge laid much stress upon the location of the red light. This light was at the end of the trench in the street, fifteen feet from the sidewalk. It gave no light at the sidewalk, and, while a warning to a traveler in the street of the existence of danger, it gave no such notice to a traveler on the walk. It might be said it was rather an assurance of safetyfor, if the city authorities were protecting people from perilous places, this protection *448would be expected to be extended to the sidewalk as well as in the center of the street.
The authorities cited by the counsel for the defendant are principally where the dangers were obvious, and in that class of cases an entirely different measure of prudence and care is required from the traveler.
The judgment is reversed and a new trial ordered, with costs to the appellant to abide the event.
Hardin, P. J., and Adams, J., concurred; Follett, J., dissented with opinion, in which McLennan, J., concurred.