majority">Cochrane, J.:

“ The owner of land is not bound by. the common law to -fence, his land or in- any way to mark the boundaries of his possession. ■ (Wells v. Howell, 19 J. R. 385;*Stafford v. Ingersol, 3 Hill, 38.) *647He may leave it open and a person entering thereon without permission is a trespasser, and it is no excuse that the entry was made innocently and by mistake, and the rule is the .same in respect to a traveler on the highway who, without necessity, goes therefrom on to the adjoining land. The owner of land may also make an excavation on his own premises'and is hot bound to fence it for the protection of persons not lawfully on the land. This is the general rule and rests upon the right of the owner to use his property as he pleases, and in the absence of special circumstances if a person traveling on a highway deviates therefrom and falls into a pit or excavation on the adjacent land the owner is not responsible for the resulting injury.” (Beck v. Carter, 68 N. Y. 283.)

An exception to the general rule above enunciated is stated in Hardcastle v. South Yorkshire Railway Company (4 Hurl. & N. 67), cited approvingly in Beck v. Carter (supra).The court in the English case said : “ When an excavation is made adjoining to a public way so that a person walking upon it might, by making a' false step or being affected with sudden giddiness, or in the case of a horse or carriage-way, might, by the sudden starting of a- horse be thrown into the excavation, it is reasonable that the person making such excavation should be liable for the consequences; but when the excavation is made at some distance from the way and the person falling into (it) would be a trespasser upon the defendant’s land before he reached it, the case seems to us to be different. We do not see where the liability is to stop. A man getting off a road' on a dark night, and losing' his way may wander to any extent, and if the question be for the jury no one could tell whether he was liable for the consequences of his act upon his own land or not. We think that the proper and true test of legal liability is, whether the excavation be substantially adjoining the way, and it would be very dangerous if it were otherwise— if in every case it was to be left ás a fact to the jury whether the excavation were sufficiently near to the highway to be dangerous.”

In Hadley v. Taylor. (L. R 1 C. P. 53), cited in Beck v. Carrier, the case as reported shows that the “ hoist hole ” into which plaintiff fell “ was within fourteen inches of the highway.” The court, all the judges concurring, said : “ I think, however, the defendants (assuming them to be in possession of the adjoining premises) would *648be liable for a nuisance to the highway if the excavation was so," near to it that a person lawfully using the way, and using ordinary caution, accidentally slipping, might.fall into it.”- The circumstances of the accident do not appear, but as a verdict for the plaintiff was sustained, we may infer, from thé language of the court above quoted that plaintiff slipped or accidentally fell.

The case of Beck v. Carter (supra)is. relied on by the respond- ■ ent as an -authority herein. I- think it is distinguishable. Although the excavation .into which plaintiff fell in that case was distant-from ■the original boundaries of the highway, all of the intervening space was in common use by the public with the knowledge and acquiescence' of defendant, and the excavation wás, therefore, immediately adjoining land which for a long time had been .used as part of . the highway. The plaintiff in that case was expressly stated not to • have been a trespasser. In'this case, although, the margin between th'e stairway and the public sidewalk was narrow, there is no evidence that it was ever traversed by the public. In fact, from the condition which there existed, it could not well have been thus traversed. The boundaries of Main street and Bajlroad avenue, and ' their intersection, were well marked. Plaintiff could not well have fallen into the- stairway without, first, becoming a. trespasser on defendant’s premises, unconsciously, of course, but no less a trespasser because, of that fact. If it be concéded that' because of the ’ nearness of this stairway to the sidewalk a person could have fallen into the stairway without becoming a trespasser on defendant’s property, nevertheless, that is not the plaintiff’s case. He left .the sidewalk for the purpose of shortening his course. ■ There is no difference in principle whether the stairway be two'feet or twenty feet from the sidewalk. The act of plaintiff in' leaving the sidewalk •may have been natural and excusable. But he did not take the time or trouble to properly inform himself of the exact boundaries of the streets as indicated by the sidewalks; or, perhaps,, conscious of tlie boundaries • and recognizing them, -he, nevertheless, in his baste; disregarded' them. In either event the penalty of his misfortune should not' be visited on the' owner -of the property, who did not interfere with .the highway or render it dangerous to a traveler as long as tlie traveler ke.pt' thereon. • ’ ' , '

In considering the English cases referred to in Beck v. Carter *649(supra), and the cases in this State hearing on the subject, I am convinced that the test of liability is whether the excavation adjoins the highway or is in such close proximity thereto that a person while on the highway slipping or stumbling or making a misstep falls into the excavation, but that such liability does not exist where the traveler deviates from the highway for ever so short a distance and becomes a trespasser before he falls. There are some dieta which seem to indicate a greater liability, :but I am not aware that a property owner has ever been held liable except as above indicated. None of the cases cited by plaintiff sustain his position.

In Thompson v. New York Central & Hudson River Railroad Company (41 App. Div. 78) the defendant actually interfered with the highway by crossing it with Its tracks and" with the ditch into which plaintiff fell. The court said : “ It was for the jury to say whether or not the defendant was guilty of negligence in constructing and maintaining a ditch of the character of the one in question in such close proximity to the highway that a traveler by making a single misstep) -when attempting to cross sueh ditch should have fallen into it.” The entire situation was one which had been created by the defendant and the case is wholly unlike the present case.

In Healy v. Vorndran (65 App. Div. 353.) the head note is misleading. The plaintiff there, while engaged in the lawful and laudable occupation of attempting to rescue a child sitting on a timber in a perilous position, and while standing on land used by the public as a part of a street, slipped and fell into the excavation. The court said: “Nor can the plaintiff be charged as a trespasser in any such sense as would bar her right to a recovery. The loeus in quo was actually used up to the edge of the timber as jiart of the sidewalk.”

In Murphy v. Perlstein (73 App. Div. 256) the excavation was immediately adjacent to the sidewalk. Plaintiff walking around some slush and water on the sidewalk proceeded close to the ■ excavation, slipped and fell therein. But when she slipped she was on the highway.

All the foregoing cases are clearly within the exception to. the.' general rule and emphasize the ground of liability heretofore indi- ■ cated. Cases against municipalities are unimportant as authorities. *650They depend on different principles. -I do not mean to intimate that this action may or may not be maintained against the village.' But it may safely, be asserted that a municipality owes the ■ duty of some care for the safety of the traveling public. Such duty is affirmative. The duty of the adjoining landowner is negative^ viz.', not to interfere with the highway or to impair its safety for a traveler so long as he remains thereon. The proposition may perhaps ■ be differently stated as follows : It is not the duty of a property ■ owner to guard an excavation on his own premises against a wayfarer who may accidentally or otherwise wander from the highway; hut it may he the duty of the municipality to guard the highway so that the wayfarer may not wander therefrom and into the- excavation. Whether. or not "that duty' rested on the municipality in thé present case we aré not now required to decide, '

The judgment and order .must be reversed and a new trial granted, with costs to the. appellant to abide the.event.

All concurred; Sewell, J., not sitting..

Judgment and order reversed; and new trial granted, with costs to appellant to abide event.

19 Johns. 385.— [Rep.

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