Jones v. City of Binghamton

Van Kirk, J.: The action is brought to recover damages for injuries suffered in a street in the city of Binghamton, charged to have been caused by a defect in the street surface. At the close of the evidence the court granted the motion for a nonsuit on the theory that there was no actual or constructive notice to the city of the defect. (Second Class Cities Law, § 244.) This presents the one question on this appeal. . There was evidence in the case which would have justified the jury in finding the following facts: The street surface at the place of the accident was a brick pavement. The city had made an excavation for the purpose of a water pipe con [185] nection for a house along the street, which excavation was extended from the railway track in the center of the street to the curb and was about two and one-half feet wide. The excavation was then filled and the surface was left rounding, so that at the center it was about five inches higher than the surface of the pavement. The paving bricks had been put’ aside to be later relaid. The filling as made was for temporary use. Such work was completed about four o’clock in the afternoon and about seven-thirty o’clock in the evening a car driven by one Hoose was broken and at that time there was a depression in the surface of this filling about twelve inches deep in the center. A few minutes thereafter the plaintiff suffered her injuries; the wheels of the car which belonged to plaintiff’s husband and in which they were riding struck this depression, the car was diverted frbm its course and ran into a trolley car. This work in the. street being done by the city was not completed. The city had filled the excavation with dirt. It produced witnesses to show that the filling was properly done, the dirt was tamped in and a hard surface, sufficient for normal traffic, was left. This plaintiff disputes and among other things shows the condition which existed when the injuries were received and shortly prior thereto. The credibility of interested witnesses describing conditions at the place of the excavation is for the jury. The city is chargeable with knowledge of the condition in which it left the street surface. If the surface was left in a dangerous condition, the public should have been reasonably protected by lights or barriers or both. If the surface was left in a reasonably safe condition for the travel to be expected there, and later, from some cause other than the unfinished condition in which it was left, a defect appeared, the city was entitled to notice of that defect before it could be held liable in negligence. If, on the other hand, the defect was due to ordinary travel, because of the unfinished and imperfect condition in which the city left the street surface—■ because its previous safe condition had not been restored — notice of the defect was not a condition precedent to a recovery by the plaintiff. (Minton v. City of Syracuse, 172 App. Div. 39; Tabor v. City of Buffalo, 136 id. 258.) [186] The case should have been submitted to the jury, with proper instructions. • The judgment is reversed and a new trial granted with costs to plaintiff, appellant, to abide the event. - John W. Kellogg, P. J., and Cochrane, J., concur; Woodward, J., dissents, with an opinion in which Kiley, J., concurs.