I am unable to assent. It was testified to, and the jury was entitled to find, that the Empire City Subway Company had broken into an *518asphalt roadway and dug a trench five or six feet deep, and about two feet wide, in which to lay telephone ducts; that after the ducts were put in the trench was back-filled with dirt, which was rammed down and left level with the surface of the asphalt of the roadway; that .the work of the Empire people was completed on May twenty-seventh, when the trench was ready to receive its asphalt cover at the hands of the defendant under a contract it had with the Empire Company; . that on June second the defendant opened up the trench and excavated to a depth of nine inches from the surface, replacing the earth with six inches of concrete, and over the concrete loose earth; that the process of asphalting employed by the defendant was to put in concrete and allow it to settle so that when settled its surface would be three inches from the surface of the street, and then to lay over it a binder to a depth of one inch, and then to cover the binder with asphalt to a depth of two inches; and on June ninth, when the plaintiff claims to have fallen, the finishing part of the process — laying the binder and asphalt — had not been done; and that on the day in question it had been raining. To one witness, Sherman, the “dirt was fresh, freshly dug up; * * * it looked to me loose.” The witness Flam testified that the plaintiff “fell in with the leg;” that her shoe left an impression in the wet earth, “know how it is if you step in, take your foot out, remain certain marks, hole. * * * She fell inside, remained a hole.” Two witnesses for the plaintiff testified that a wagon wheel had sunk in the dirt a day or two before. One of these witnesses said that push-carts had fallen in. A witness for the defendant said the earth at the top of the trench was “muddy * * * it was muddy enough so that you could see visible foot-prints there. ’ ’ Another witness for the defendant said it “was muddy, numerous foot-prints from people stepping in it all day long.”
*519The foreman in charge of the trench work for the Empire Company testified that from the time of completion of his work, on May twenty-seventh, until the trench was turned over to the defendant on June second, it was his duty to, and he did, examine the trench every day to see whether the fill was “going down. ” It is in evidence that the scene of the accident, at the corner of Ludlow and Stanton streets, is a very busy and crowded place, where accidents frequently occur because of the crowds and consequent confusion.
It seems to me that the mere statement of this evidence shows that the case was for the jury, unless it is to be said that when holes are dug in our crowded city streets, for no matter how useful a purpose, the digger may, while his concrete is settling, or for any reason of his own, throw in a covering of loose earth that is obviously a menace alike to pedestrians and vehicular traffic. Even if the defendant could exonerate itself by showing that it had tamped the earth down, and made it as hard and solid as dirt ordinarily can be made by packing, the question would be for the jury in view of the testimony presented for the plaintiff that the earth was loose; but no such proof was offered, and the jury was amply warranted in finding that the earth was loosely thrown in, was untamped, and created a condition of danger. Nor do I see any room here for the application of the doctrine that refuses relief to a pedestrian who ignores obvious defects in the highway. This was no such obvious defect, for surely, I think, one may assume in crossing our asphalted city streets that a dirt portion of the roadway that is on a level with the asphalt is packed down, hard, solid, and safe to walk upon. The plaintiff testified that she was unfamiliar with the neighborhood. While the decisions upon the subject of street defects are none too clear, for the reason, perhaps, that because of the *520infinite variety of highway obstructions and dangers each case must rest largely upon its own facts, it cannot, I think, be denied that private creators of street dangers are held to a stricter accountability than is a municipal body. It would be an intolerable burden to municipalities to be held answerable in damages for slight defects in the many miles of highways under their care (Terry v. Village of Perry, 199 N. Y. 79; Butler v. Village of Oxford, 186 id. 444), but there is no such reason for exculpating persons who, in a private capacity, have created dangerous conditions in the course of street work they are engaged in, and this without regard to the purpose of the work or the amount of benefit the general public may probably or necessarily derive from it. Even in an action against a municipality, a distinction is drawn in favor of the defendant in the case of a defect from ordinary wear, as against a defect caused by the use of temporary expedients. See Butler v. Village of Oxford, supra. The defective condition in the case at bar was clearly of a temporary character. For the reasons stated I vote to affirm.
Judgment reversed, with costs.