I dissent. The plaintiff was a conductor of a street surface railway company, which worked its road in a city street wherein the defendant was digging a trench incidental to work on its sewer. The sides of the excavation were shored by planks which reached four or five feet above the ground. There was but scant space between the rails of the railway and the planking, so that the running boards of the cars just grazed by. Plaintiff, *81when standing on the running board of the car taking fares, fell off the car and was injured. He and one witness testify that he was struck bft the planks of the shoring as the car was passing the excavation.
The negligence charged is that the excavation was a dangerous obstruction, carelessly and negligently permitted by the defendant to be and to remain in the said street in such dangerously close proximity to the track of the said railway company as to cause such contact and collision, and that the defendant permitted the construction to exist without guard, light, protection or supervision, notice or warning. Certain it is that the railroad corporation could not pre-empt the street so as to prevent municipal work therein. The defendant had as much right to build its sewer in the public street as the railroad corporation had to run its cars thereon. There is no evidence that shows or tends to show that the excavation was not necessarily or properly made at the place where it was dug.
If the defendant is to be held liable for neglect to light the place, that liability must be based upon some duty which it owed to the plaintiff. (S. & R. Neg. [5th ed.] §§ 15, 25 ; Thomp. Neg. [2d ed.] § 3 ; Cusick v. Adams, 115 N. Y. 55.) The purpose of lights and the like was to warn those who might, in traveling the highway, naturally come in contact with the structure. The plaintiff was not a driver of a vehicle along the highway, or a pedestrian thereon. The car could not depart from its steel or iron way, and on its rigid course cleared the obstruction. As to the car and those whom it carried, the city was not bound to light up the obstruction or to guard it in some similar manner.
I think that the injury to this plaintiff did not'so directly result from the wrongful omission “ that according to common experience and the usual course of events it might, under the particular circumstances, have reasonably been expected.” (Jex v. Straus, 122 N. Y. 293, 301.)
J udgment reversed and verdict reinstated, with costs.