Rhode Island street extends east and west in the city of Buffalo and is crossed at right angles by West Utica street. When the accident occurred the plaintiff lived at 1STo. 403, on the north side of Rhode Island street, which is about two hundred feet west of the place where the accident occurred, which was just east of West Utica street and in front of the northeast corner lot on these streets. During several days prior to the accident a main sewer was being constructed in Rhode Island street east of West Utica street, a deep trench being excavated to receive the sewer j>ipes. At the date of the accident this trench was not completely filled, but was partly open for some distance immediately east of West Utica street. On the northeast corner lot on these streets a building was in process of erection from which the owner had about eight days before the accident opened a trench five or six feet deep, extending south from the building to the Rhode Island street sewer. This trench was opened to receive a lateral sewer pipe connecting the new building with the Rhode Island street sewer, and a section of the north sidewalk on that street was removed in opening the' private trench and left ojien for about eight days without being barricaded. This was gross negligence on the part of the city. A short distance east of the point where the lateral trench crossed the sidewalk, and on the north side of Rhode Island street, was Farnham’s saloon. The plaintiff is a laborer, and at the time of the accident was working on the Ellicott Square Building, about two miles away from his residence. At about half-past six *449o’clock in the evening of November 19, 1895, about an hour after sunset, having returned from his day’s labor, he left his house and walked east along the north side of Rhode Island street on his way to Farnham’s saloon to get a pail of beer. He describes the night as rainy, foggy and dark. He proceeded on his way east on the north side of the street until he reached the lateral trench. Before he reached the trench he discovered that there was dirt thrown on -each side of the walk, leaving a clean place in the center of the walk about two feet wide for footmen. As he reached the lateral trench he saw a pile of dirt extending clear across the sidewalk on the west side of the trench, which was about fifteen or eighteen inches high. He testified that he did not stop, but stepped right over the pile of dirt and into the lateral trench beyond and sustained severe injuries. There was no guard or harrier on either side of the lateral trench, but at the west end of the main trench in Rhode Island street there was a red light which was about fifteen feet southwest of the place where the lateral trench crossed the sidewalk. About thirty-five feet from the place of the accident was an electric street light, but near it stood a lamp post, a telegraph post and an electric railway post, which, it is asserted, cast shadows on the sidewalk at the place of the accident. At the close of the plaintiff’s case he was nonsuited on the ground that he negligently contributed to the accident. It is true that a person traveling on the sidewalk of a city street is not bound to anticipate that obstructions will be left thereon or therein which will make it dangerous to proceed, and a traveler is not required to be constantly vigilant to discover defects, but if he does discover a defect he must exercise due care not to suffer injury from the discovered defect. When this plaintiff saw, as he did, some feet west of the point of the accident, that dirt was piled on the sidewalk, and when he reached the west side of the lateral trench and further saw a pile of dirt fifteen or eighteen inches high lying clear across the sidewalk on which he was walking, he had notice that the walk was obstructed and he ought to have stopped and ascertained the extent and nature of the obstruction before attempting to step over it without examination, thought or care. In proceeding without hesitation or examination the plaintiff was negligent and his negligence directly contributed to cause the accident for which he seeks *450to recover damages. This is a hard case, and probably a border case, but it seems to me that the nonsuit was right and should be sustained. The plaintiff, though he lived within two hundred feet of the place where these excavations had been going on for days, testified that he had little or no knowledge of the condition of the street. A building was being constructed there and a main sewer was being laid in Rhode Island street, and it is difficult to believe that the plaintiff was without previous knowledge that the street was torn up. The learned trial judge evidently did not believe that the plaintiff was without previous knowledge of the condition of the street. This opinion was undoubtedly formed not only from the testimony given by the plaintiff, but by his manner on the stand. The atmosphere which surrounds a jury trial cannot be produced before an appellate court, and in a close case the discretion of the trial judge should not be lightly disregarded.
I think the judgment should be affirmed, with costs.
McLennan, J., concurred.
Judgment reversed and a new trial ordered, with costs to the appellant to abide the event.