This is an appeal from a judgment at the Trial Term, entered upon the dismissal of the complaint at the close of the plaintiff’s case.
Two causes of action are claimed by the plaintiff, namely, the maintenance of a nuisance and negligence. ...
The facts upon which the recovery is sought, are, briefly, as follows: „
On the'l'Tth day of November, 1894, the plaintiff in coming from his place of business, at No. 534 Broadway, New York city, which is. just north of Spring, street,. on the west side and .around the. corner into Spring street, stepped upon an iron door1 lying within the stoop line, and slipped and fell and received the injuries complained of. •
*524■ It is in evidence that this iron door forms no part of the sidewalk, but is entirely within the stoop line, the sidewalk of Broadway, being, at that point, seventeen feet in width and on Spring street, thirteen feet.
The day of this occurrence was wet, and the plaintiff states that he did not carry an umbrella, because of -the wind, but that he hastened around the comer, took a short cut and stepped upon this iron door, slipped and fell.
He says he was in the habit of going back and forth across the same iron door, and was familiar with it and the sidewalk; he noticed the doors several times and never thought them dangerous, and had gone over them mostly efbry day. He could easily have' avoided the accident, and it is not in evidence that the sidewalk was. in any way incumbered or obstructed as to interfere with ordinary travel, or that there was any other obstacle or incumbrance to the full enjoyment of the sidewalk.
These same doors had. been in place for a number of years, and there does not appear to have been any complaint against their existence or maintenance by anyone at any time.
No accident had theretofore occurred because of their position or condition, and it is very difficult indeed, to find that they constituted a nuisance in any sense of the word.
We are of the.opinion that the plaintiff has utterly'failed to establish the fact of nuisance, as claimed in his complaint. Proceeding to a discussion of the remaining question on this appeal, namely, that of negligence, there appears sufficient in the evidence, as detailed above, to show that the plaintiff himself was guilty of contributory negligence, and if that is so, he cannot recover in •this action. ■ -
We have already seen that he could have avoided the risk which he chose to assume; the way was clear to him; he had passed it and crossed it many times in safety and had never' complained of. it in any way. '
If, because of the changed conditions consequent upon a wet day ' and the wind preventing the use by him of an Umbrella to shelter him from the rain, he, with undue haste and regardless '.of the consequences, took the shorter cut, when' he could easily have avoided ■ •the risk by keeping the sidewalk, stepped upon the door and slipped and fell to the sidewalk, he' must be deemed to have taken upon himself the entire risk of his act, and to have himself assumed all the consequences thereof. ; ..- - • •
*525We do not deem it necessary, in conclusion, to discuss at any further length the authorities covering this class of cases; it is sufficient to say that- the burden of proof was upon him to show the absence of contributory .negligence, and on this point there appears to be an utter failure of proof.
The learned judge in reaching his decision for a dismissal of the complaint says: “If you had a case or an ordinary action for negligence, even then I would dismiss your complaint under the evidence, because it is apparent that the plaintiff was guilty of "contributory negligence,” and with this view we are in accord. Having reached this conclusion, it follows that the judgment should be affirmed, with costs. ...
Schuchman, J., concurs.
Judgment affirmed, with costs.