Dickerman v. Weeks

Clarke, J.; This is an appeal by the plaintiff from a judgment dismissing the complaint at the close of plaintiff’s case, as against-the city. No appeal has been taken from the judgment in favor of the defendant Weeks. ¡The action is to recover .damages for personal injuries sustained through the alleged, negligence of the city in permitting the sidewalk on the southerly side of Thirty-first street between the Second and Third avenues to be in a defective condition. About, eleven o’clock in the evening of February 11, 1902, the plaintiff in company with her sister and niece, after attending, the Third-Avenue Theatre, between Thirtieth and Thirty--first streets, walked east, u-poil the southerly side of Thirty-first street for the purpose of taking a Second avenue car. The sidewalk at the point where the apcident occurred consisted of flagstones. A building was being erected opposite this point, but there were no lights and ■ the stréet was dark. The plaintiff tripped and fell over a flagstone, the end of Which was raised some five or six inches. She was very seriously and permanently injured. After the plaintiff fell a watchman came out with a lantern and assisted her on - to a car. Evi [259] dence was offered to the effect that this stone had been in substantially the same condition that it was on the night of the accident for a month and that a similar accident had happened over that same stone just about a month before. The person who had suffered that accident and her companion at the time identified' the stone over which plaintiff fell, and a photograph was introduced in evidence with proof that the stone was in the same position when photographed as it was at the time of the accident. Upon this proof the learned trial court dismissed the complaint. The facts proven, a stone in the sidewalk with an end raised five or six inches, sufficiently to allow plaintiff’s-foot to go beneath it, no lights or guards of any kind, that condition existing for at least a month and at least one prior accident was enough to take the question of the city’s negligence to the jury. The rule as to defects in the street seems to be established in the case of Beltz v. City of Yonkers (148 N. Y. 67), cited and followed in Hamilton v. City of Buffalo (173 id. 72), “ When the defect is of such a character that reasonable and prudent men may reasonably differ as to whether an accident could or should have been reasonably anticipated from its existence or not then the case is generally" one for the jury.” We think that an elevation of five to six inches' of the end of a flagstone on the sidewalk of a busy street in the center of a populous city cannot, as matter of law, be held to be such a slight or trivial defect as to relieve the city of responsi bility for its continuance. The length of time it had continued, together with the proof of the prior accident, was enough to require that the jury should be allowed to determine whether the defect considering the locality was one from which danger of injury should reasonably have been anticipated, and whether the city had or ought to have had notice of its existence. (Smith v. Mayor, 17 App. Div. 438.) In this case the defect had existed for a month. In Pomfrey v. Village of Saratoga Springs (104 N. Y. 464) the defect had existed for two weeks. The court said the municipal authorities “ do not fill the measure of their responsibility, however, by acting simply when they have actual notice ; but they owe to the public the duty of active vigilance; and when a street or sidewalk has been out of- repair for any considerable length of time, so that by reasonable diligence they could have notice of the defect, such [260] notice may be imputed to them.” In Brush v. City of New York (59 App. Div. 12) the defect had existed for a month ; held a question for the jury. Upon the question of contributory negligence we agree with the learned court who denied the motion to ■ dismiss upon the ground that it was a question for the jury. For the reasons stated the judgment and order must be reversed and a new trial granted, with costs to the appellant to abide the event. O’Brien, P. J., and McLaughlin, J., concurred ; Patterson and Ingraham, JJ., dissented. ' '