Wensley v. City of New York

Carr, J. : These two actions were tried as one, and come before this court on the appeals on one record. The plaintiff, Mrs. Wensley, while walking along a public street in the borough of Brooklyn in the night time, lost her footing as she stepped upon the edge of a large depression in the surface of the roadbed of the street, and fell into the hole or depression and sustained severe personal injuries. She recovered a verdict of $3,000 damages against both defendants. Her husband, John Wensley, who brought an independent action, recovered a verdict of [250] $500. From the separate judgments entered in each action both defendants appeal, and likewise from separate orders denying a motion for a new trial. The street roadbed at the immediate point of the accident was paved with asphalt. Some of the asphalt had been removed, leaving an irregular depression from six to eight feet long and about two feet wide. The chief contention on this appeal, as at the trial, is as to its depth. The proofs show that its depth was irregular, the deeper part being towards the middle of the depression. One of the witnesses for the plaintiffs testified that the measurement actually made by him on the day after the accident showed the greatest depth to be about four inches. Another witness for the plaintiffs gave testimony as to an actual measurement on the night of the accident, and that the depth varied from two to six inches. This hole or depression existed in the line of traffic from one sidewalk of the street to the opposite sidewalk, and its duration before the time of the accident was at least two months. If either defendant was liable for the existence of the depression it is conceded that the measure of liability is the same. The claim • of liability as against the city is that it neglected to keep the street reasonably safe for those using the highway. That urged against the other defendant is that it actually made the hole in the course of its business, under a permit from the city, and neglected to restore the pavement to a reasonably safe condition. It is urged on this appeal that no liability can attach to either defendant for the existence of a depression in a public street not more than four inches in depth.. It is contended that this is settled as a matter of law by the decisions of the Court of Appeals in Hamilton v. City of Buffalo (173 N. Y. 72); Lalor v. City of New York (208 id. 431), and Beltz v. City of Yonkers (148 id. 67) and other cases. None of these cases announces such a rule of law. Each must be confined to its own facts, and liability may arise under varying circumstances even where the depression is not more than four inches in depth, and the question of liability is ordinarily for the jury as the circumstances may appear in the proofs. (Kantrowitz v. Brooklyn, Q. C. & S. R. R. Co., 173 App. Div. 192.)- If the actions at bar were submitted properly to the jury this court would not be inclined to [251] disturb the verdicts on the question of the liability of the defendants. There are other and very important grounds urged by each defendant, appellant, but which are not common to both defendants. As to the defendant the city of New York a question arose as to the sufficiency of the notices served by the separate plaintiffs under chapter 572 of the Laws of 1886. The notice served by the plaintiff John Wensley described the place of the accident as “ the roadway or pavement in the street on the south side of 50th Street west of Third Avenue.” As Fiftieth street runs for upwards of a mile west of Third avenue, the notice is defective in its attempted location, and was insufficient in law to allow that plaintiff to maintain his action against the city of New York. (Purdy v. City of New York, 193 N. Y. 521; Casey v. City of New York, 217 id. 192.) His complaint should have been dismissed at the trial on the motions made by the counsel for the defendant the city of New York. The notice served by the plaintiff Edith M. Wensley is also subject to criticism as to its sufficiency. That notice at first locates the existence of the hole or depression as “in the street on the south side of 50th Street west of Third Avenue and at or near the southwest comer of 50th Street and Third Avenue,” and again “in the pavement or crosswalk or street at said location. ” Further on in the notice there is a statement of an intention to sue, as required by the statute aforesaid, in which negligence is charged against the city for “permitting the said sidewalk on said street or avenues to remain in an unsafe and dangerous condition and in permitting its use while in said condition without proper safeguards or other signals or warning.” While this accident happened at a spot where Fiftieth street and Third avenue intersected each other, it did not happen on the “ sidewalk ” of either street, but in the roadway where the streets intersected. We think that the use of the term “sidewalk ” in the latter part of the notice did not vitiate the location given in the earlier part thereof, if such was in fact sufficient. We think further that the location so given in the earlier part of the notice does not fall within the ruling in Casey v. City of New York (supra) and that it was sufficient. It was not error, therefore, to deny the motion to dismiss the complaint of the plaintiff Edith M. Wensley on this ground. [252] As to the defendant the Edison Electric Illuminating Company a further question arose. There was no direct evidence that this corporation had made the hole or depression into which the plaintiff fell. It was alleged in the respective' complaints that this defendant had made application and received permits from the proper city authorities for the doing of certain work on both sides of Third avenue, between Thirty-eighth and Sixty-first streets, and that in the prosecution of the work so permitted “it caused, among other things, a cut to be made in the pavement and an excavation to be made in the street at or near the intersection formed by the southerly side of 50th Street with the westerly side of Third Avenue,” and that it permitted “ the southerly side of said 50th Street at or near its intersection with the westerly side of Third Avenue, to be and remain in a dangerous and unsafe condition for pedestrians and other persons.” This defendant, answering, this allegation of the complaints, expressly admitted that it “obtained from the City of New York proper permits to open the street mentioned in the complaint and to make installation of wires and conduits, service boxes and other connections to its mains in said street, as alleged in said complaint, and that after the granting of said permits and in or about the month of April, 1913, in the prosecution of its said business under said permits it caused said street to be opened and an excavation to be made therein at or near the point mentioned and described in the complaint, for the purpose of making such connections as aforesaid.” We think that this allegation in the answers of this defendant admitted sufficiently its connection with the hole or depression set forth in the complaint. That the place of the accident was within the prolonged house lines of both the southerly side of Fiftieth street and the westerly side of Third avenue as these highways crossed each other, appears by the proofs taken at the trial. The permits from the city authorities, as received in evidence at the trial, required this defendant to replace the pavement of the highway wherever it disturbed the surface thereof. We have reached the conclusion that the judgment and order in the action of Edith M. Wensley against both defendants should be affirmed, with costs; and that the judgment and [253] order in the action of John Wensley should be affirmed, with costs, as to the defendant the Edison Electric Rluminating Company, and reversed as against the defendant the city of New York and the complaint in said action should be dismissed as against said defendant, with costs. Present—Thomas, Carr, Stapleton, Mills and Rich, JJ. In first case, Judgment and order unanimously affirmed, with costs. In second case, Judgment and order unanimously affirmed, with costs, as to the defendant Edison Electric Illuminating Company, and reversed, and complaint unanimously dismissed, with costs, as to the defendant city of New York.