Davidson v. City of New York

Gaynor, J.: This case did not go to the jury on the theory that oneflag might be above the other as much as 5 inches at the outside by the tree — the highest point. On the contrary, there was the testimony of an engineer that by actual measurement by him the elevation at such highest point was only 2J inches (and it gradually decreased to nothing at the outside of the flag walk, the width of which was 6 feet); and the learned trial Judge charged the jury that they had to accept that evidence as against the loose estimates which had been testified to. Moreover, the learned trial Judge refused to charge the request of the defendant that if the jury found that the elevation was only inches at the highest point, and ran from that down .to nothing, and that the plaintiff simply tripped and fell, the defendant was not liable; so that this is the precise point of the case. It is impos-sible to free a city from such slight defects, and unreasonable to say, or permit a jury to say, that they are “ obviously dangerous”, which is the test of the city’s liability.-. We know that they are not, [354] If they were, thousands and thousands would be hurt by them hourly. That it is “ possible ” for some one out of many, out of ■ . millions, it may be, to trip on such a defect, does not make it dangerous. Probability, not possibility, governs (Butler v. Village of Oxford, 186 N. Y. 444; Gastel v. City of New York, 194 id. 15). The judgment should he reversed. Jenks, Burr and.Miller, J.T., concurred; Woodward, J., read for affirmance. -