The plaintiff claims that she was injured by falling - down a coal-hole on the sidewalk appurtenant to *217premises owned and controlled by the defendant. The complaint is susceptible of interpretation as alleging a cause of action based either on nuisance or negligence and the defendant at no time requested any election or explanation of the theory.upon which the complaint is based. The plaintiff produced evidence showing that she fell into the coal-hole but did not show the cause of her fall, that is, whether the cover was loose or broken. The defendant moved to dismiss the complaint on the ground that no negligence had been shown, and this motion was properly denied. Clifford v. Dam, 81 N. Y. 52; Jennings v. Van Schaick, 108 id. 530. The de- ' fendant was then permitted to show that the coal-hole was in the same condition for six years; that the cover fitted closely into a frame and could not be moved without being pried open with an instrument, and was unbroken. At the close of the whole case the defendant made no motion to dismiss and, therefore, technically has conceded that there was a question, of fact for the jury, yet he now contends that the plaintiff has failed to make out a cause of action either on the theory of negligence or nuisance and that in any event the trial justice erred in submitting the question to the jury on the theory of nuisance. There is some question as to whether, in view of the failure of defendant to plead that he was licensed to construct or maintain this coal-hole on the public street, the evidence of acquiescence of the city in its maintenance was material, and whether the trial justice would not have been justified in submitting the case to the jury on the theory that the structure was in or of itself a nuisance. This question, however, need not be "considered by us because the trial justice did not submit it on that theory. It is true that the judge’s charge is not entirely clear and in one part is susceptible of interpretation as leaving to the jury only the question whether or not the plaintiff fell into the coal-hole, but the charge begins and ends with a plain statement that the jury may find for the plaintiff only if they find that the accident “ happened solely as a result of negligence upon the part of this defendant,” and “ that unless the jury find that the plaintiff Charlotte Moser fell in this coal-hole by reason of the negligence of this defendant in the construction of the *218•coal-hole or its cover or in maintaining the coal-hole with this cover, there cannot he any recovery.” There.is no exception to the charge and alleged errors in parts of the charge cannot be considered now. The general theory of the charge was clearly favorable to the defendant.
The sole question then remaining in the case is whether the finding of the jury that the accident occurred through defendant’s negligence is against the weight of evidence. The plaintiff “ had a right to assume-the safety of the sidewalk and so was not called upon to give attention to her steps until 'in some manner warned of her danger.” Jennings v. Van Schaick, supra. There can, therefore, be no question as to contributory negligence. The coal-hole cover according, to defendant’s witnesses was unbroken, fitted closely into a circle flush with the sidewalk, and could only be raised by prying it up, and was not secured by a -chain because of the difficulty of prying it open. The defendant was obliged to exercise care in the maintenance of the coal-hole and the jury could well infer from all the testimony either that the coal-hole cover was so loosely secured that the hole was not sufficiently protected or that the cover had been negligently replaced after use, leaving the hole as a trap to passers-by. In either case the negligence of the owner in control of the premises was sufficiently established.
The judgments should be affirmed, with costs in one action.
¡Guy and Bijue, JJ., concur.
Judgments affirmed, with costs in one action.