I do not think the court was justified in submitting the question of the defendant’s negligence to the jury. A sewer was in course of construction at the Kingsbridge road, in the borough of the Bronx, under a contract with the city of Few York. In constructing that sewer the contractor had excavated a portion of the street which included the sidewalk, and it seems that over this excavation the contractor had placed two planks. The defendant had nothing to do with placing the planks over this excavation. It would appear that these planks were not placed over the excavation for use by pedestrians in the street, but for the purpose of assisting the contractor in the work in which he was engaged; but these temporary planks were not a part of the sidewalk constructed or *316maintained by the defendant, but were placed' there by the contractor while in the performance of his contract. With this whole situation the plaintiff was entirely familiar, as he had crossed the excavation on the planks for some time before the accident.
The plaintiff testified that one of the planks “ rocked,” and that he fell into the excavation and sustained the injury for which he has recovered. There was certainly no obligation on the part of the defendant during the time that this public improvement was being carried out to provide a passageway over this excavation made necessary by the improvement; and if these planks' were insecure, it was the negligence of the contractor and not of the defendant. There is nothing to connect the defendant with this condition, except the fact that it had entered into a contract to construct a sewer in this street. It was not shown that the defendant had notice of this excavation- or was under any obligation to see to it that the planks placed across it were secure for pedestrians. I think there was no evidence to justify a finding thatthe defendant failed in the performance of-any duty that it owed to the plaintiff. I also think that the plaintiff assumed any risk that there was in crossing these planks. He was a carpenter by trade and voluntarily used these planks across the excavation instead of a secure arid safe route outside of the excavation which would have avoided the danger. He thus voluntarily placed himself in a place of danger and cannot recover.
I think the judgment should be reversed.
Judgment and order affirmed, with costs.