I think the judgment should be affirmed. The plaintiff testified that “ they were building á church and a church.house and in front of: the church house I fell; my right foot went under a stone, and I fell forward on my knees and abdomen:; I could not' raise.” She ‘ further testified that a watchman came along with á lantern to help her and with the aid of the lantern she saw that she had.fallen over a stone which was raised towards Third avenue and the dirt was out froni underneath it; it was raised five or six inches. She was corroborated by her sister and her .niece who were with her. Upon cross-examination she testified that it was very dark, but that she could see that there were building materials standing near the curb; that there was a fence built in front of the building which :was being constructed; that there were some planks laid along on the ■ sidewalk; ■ that building operations were going on at that, point and that she had befen through the street several times before thfe. accident. Another witness testified that about the middle of January, in the same year, she was walking towards Second avenue on Thirty-first street, on the south side of the street; that she tripped on a stone and hurt her knee very- badly; that the stone was raised about four or five inches, just enough for her foot to go Under and trip. She was shown a photograph of the;sidewalk and she said it was a photograph of the stone over which she fell. '■ There was no evidence that the city had notice of the condition of this sidewalk; and ho evidence of the- condition of the sidéwalk prior to the accident, except the testimony of the witness who identified the stone in the photograph, taken two days. after this acci- , *261dent, as the stone over which she fell. At the end of the plaintiff’s case the court dismissed the complaint' upon the ground that there" was no' evidence of negligence on the part of the defendant the city of New York, and the plaintiff appeals.
1 think that this dismissal can be sustained upon the grounds that the evidence is not sufficient to sustain a finding of the defendant’s negligence, and not sufficient to justify a finding that the plaintiff was free from contributory negligence. The sidewalk in question was in front of a lot upon which af church and church house were being built. There were building materials in the street and planks were piled on the sidewalk. During the construction of buildings fronting upon a street there is necessarily some disturbance of the sidewalk; and certainly the city is not responsible if persons engaged in such building operations permit the sidewalk to become temporarily out of repair, and it would, I think, be imppsing too great* a burden upon a municipal corporation to hold' it responsible for inequalities in a sidewalk in front of which such building operations are being carried on. Assuming that the jury would have been justified in finding that some time in the middle of January there was an irregularity in the sidewalk in front of these premises, it cannot be said that there was an affirmative duty on the part of the municipal corporation to repair that sidewalk while the building operation continued. The question as to the liability of the persons conducting the building operations to properly light the street or to protect passersby from injury in consequence of a condition produced by them in- the building operation is not before us. The municipal corporation is sought to be held because of an irregularity in the sidewalk which had remained while the building was proceeding. ■ To justify a recovery against the municipal corporation it was necessary to show that the street was in a dangerous condition, of which fact the municipal corporation had express notice, or that it had remained in a dangerous condition for such a length of time that it was negligence for the defendant not to have known it and repaired it, but I do not think that this obligation can be held to extend to a situation where a portion of the sidewalk is being used for the construction of a building' abutting upon it.
I also think that the evidence fails to show that the plaintiff was *262free from contributory negligence. She knew that this building was being constructed; that there were building .materials in the street and planks upon the sidewalk; and yet, on a dark night, without making an effort to ascertain the condition of the sidewalk, she walked over it and the accident resulted. There is no dispute but that she could have used the sidewalk upon the other side of the-- street and avoided any danger of the sidewalk being out of repaii’ from the building operations. As was said in Weston v. City of Troy (139 N. Y. 281): The presumption which a wayfarer may indulge, that the streets of a city are safe and which excuses him from maintaining a vigilant outlook for dangers and defects, has no application where the danger is known and obvious.” In Walsh v. Cental N. Y. Tel. & Telegraph Co. (176 N. Y. 163) it was field that'where it appears that a street has been disturbed a person using it is bound to exercise unusual care in passing the locality, and in McDonald v. Holbrook, Cabot & Daly Co. (105 App. Div. 90) the same rule was applied. There is no evidence that the plaintiff exercised any care in using this sidewalk, let alone the unusual care that the situation demanded. She walked along this sidewalk upon a dark night knowing that building operations were in progress and- that there were building materials in the street and planks upon the sidewalk without looking for any obstruction or taking any measures to ascertain the condition of the sidewalk. • That, I think, ivas a failure to' exercise the care that is required of one using the street.
On both grounds, therefore, I think the court was justified in dismissing the complaint.
Patterson, J., concurred.
Judgment and order reversed, new trial ordered,' costs to appellant to abide event.