Keener v. Tilton

Loughran, J. In alighting after dark from a trolley car of the defendant at a street crossing, plaintiff stepped into a hole in the pavement and fell. A judgment entered on a verdict for her damages has been reversed and the complaint dismissed. The hole in the street was outside the defendant’s right of way. It was a rectangular depression eleven and three-quarters inches long and six inches wide. Lengthwise it formed a right angle with the track of the defendant and at its end nearer thereto was not more than two inches deep. There was uncontradicted evidence of its existence for at least one month before the accident. Whether claims had been made against the defendant for similar accidents the record does not show. The trial judge left to the jury the question “ as to whether or not this depression was of such a character ás to charge *456 this defendant with negligence.” The jury’s answer in favor of the plaintiff has been rejected by the Appellate Division as contrary to and against the weight of the evidence. Argument for the defendant does not go so far as to assert that a carrier owes no duty at all to passengers in respect of hazardous conditions of the journey external to its own property and equipment. But the defendant does take the broad ground that a passenger when getting off the step of a street car must in all cases depend upon himself alone for protection against the possibility of his stepping into a depression in the highway which a municipality would not be bound to repair for the safety of pedestrians. We see no reason for establishing so substantial an exception to the rule which requires of carriers of persons that their undertaking be discharged with all due caution and forethought. A hole in a street must be pretty deep before a pedestrian injured thereby can hold the municipality to payment of his damages. (Lalor v. City of New York, 208 N. Y. 431.) This is a practical limitation upon the implied civil liability of municipal corporations respecting defective streets. Such residual governmental immunity in that field cannot be made to shelter proprietors of street railways against indifference in setting down passengers at insecure places on the highway. The essential duty of a carrier may call upon it to safeguard a passenger against inconspicuous dangers of the road that should be known to it. (Dudley v. Smith, 1 Campb. 167; Schlessinger v. Manhattan Ry. Co., 98 N. Y. Supp. 840.) It may be that the hole which caused this plaintiff’s fall was not exactly a trap. But was it self-evident that the risk of such a mishap was altogether remote even in the nighttime? Or that no convenient way of disclosing the pitfall to the plaintiff would have kept her on her feet? Matters of that kind were to be considered in deciding upon the quality of the conduct of this defendant’s servants in the circumstances. We cannot say that their conduct was so plainly sufficient that the question should not go to a jury. *457 The judgments should be reversed and a new trial granted, with costs to abide the event.