Van Dyne v. Village of Seneca Falls

Crosby, J. The action is brought to recover for personal injuries suffered by plaintiff as a result of falling upon a defective sidewalk. The learned trial justice granted a nonsuit at the close of plaintiff’s case. Upon this appeal the evidence is to be considered in the light most favorable to plaintiff. (Lombardi v. New York State Railways, 224 App. Div. 438.) So considered the evidence fairly shows that plaintiff was walking carefully along Green street in the village of Seneca Falls, which was a much-traveled street, and well built up, although plaintiff had used the street very infrequently and was not acquainted with its condition. It was in the evening, extremely dark, and there were no street lights near, and the darkness was enhanced by large trees standing close together. The sidewalk was four feet wide, made of cement. At a private driveway, where plaintiff fell, the cement walk had been broken away upon both sides, the two holes being opposite each other so that only fifteen and one-half inches of walk remained intact between the two holes. The two holes appear to be approximately the same size and shape, the one on the side where the plaintiff fell being forty-eight inches long (measured lengthwise of the walk), and while its width is not given it must have been nearly seventeen inches wide, considering that the two holes covered the entire width of the walk, lacking fifteen and one-half inches in the center. The hole where plaintiff fell was two and one-half inches deep, measured at the edge of the broken cement, and somewhat deeper in other places, and the [142] bottom of the hole was uneven, and covered with broken pieces of cement. There was no overhang of the broken edge of the walk and plaintiff did not get her foot caught or fastened anywhere. Various witnesses testified to the length of time the walk had been in the condition outlined. One testified to seeing the walk in substantially the same condition for one year; several others to seeing the same thing for three years, and one to seeing it for four years. Two apparently disinterested witnesses testified to falling at the same place before, ore about two weeks before the plaintiff was injured, and one a considerable time before. One witness, the father of plaintiff, testified to having notified the street superintendent of the defective condition of the walk some time before the accident. This witness also notified a Mr. Doan whose relation to the village government does not appear. In appellant’s brief he is said to have been the mayor, and respondent does not dispute that claim. The photographs in evidence are enlightening. Plaintiff fell at the hole on the inside of the walk. At the same time her sister, who was walking on the outside, also fell. In this state of the record we think issues were presented that should have been passed upon by a jury. We are not unmindful of the decisions in such cases as Hamilton v. City of Buffalo (173 N. Y. 72); Lalor v. City of New York (208 id. 431); Beltz v. City of Yonkers (148 id. 67); Kuhn v. Village of East Syracuse (209 App. Div. 186); Eger v. City of New York (239 N. Y. 561); Butler v. Village of Oxford (186 id. 444) and many other cases. The Hamilton and Lalor Cases (supra) were both cases where the defect was in the paved portion of the street dedicated to vehicular traffic. One might reasonably expect a better condition for walking in sidewalks where only pedestrians travel and where the ground is more shaded and obscured by trees and buildings, and less lighted by street lamps. Beltz v. City of Yonkers (supra) was a sidewalk case, but the walk was eight feet wide and the hole was in the center and was only seven and a half inches wide and the court stressed the fact that there was “ ample width of flagging on either1 side.” It also appeared that “ the walk, in this condition, had been used by the public for years, and it appears that no accident had resulted from such use before.” In the instant case there was left only fifteen and a half inches to walk upon, and there had been two accidents before the one involved in this case. In Butler v. Village of Oxford (supra) it was said: “ There were electric lights in the vicinity, which threw their fight upon the stone and enabled plaintiff to see,” etc. Also: “ There not only was no [143] evidence that anybody else had ever stumbled at this point, but upon the other hand, there was evidence of the use of this walk by a large number of people * * * without any resulting accident.” Also: “ It is a matter entitled to some consideration that the situation complained of was not the result of breakage or wear which had impaired the original condition of the walk, and which fact of itself sometimes quite strongly suggests the inference of negligence.” And again: “ Each case must necessarily depend upon its particular features.” In the instant case there were no lights; the street was very dark, and the defect complained of was entirely due to breakage and wear. In Eger v. City of New York (supra) the facts are not fully reported, and in Kuhn v. Village of East Syracuse (supra) this court conceded that there was a question of fact for a jury to decide by reversing a judgment for plaintiff and ordering the case back for a new trial. It would not be profitable to review all the sidewalk cases that have been decided by the appellate courts. Different cases are similar but never exactly alike. We think that the combination of circumstances in this case — the dark, unlighted street, the narrow walk, the two holes opposite each other so as to leave only fifteen and one-half inches to walk upon, the previous accidents, the fact that the defect was due to wear and irregular breakage of the cement — all these make a proper case for the judgment of a jury. The judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event. All concur, except Thompson, J., who dissents and votes for affirmance in an opinion. Present — Sears, P. J., Crouch, Taylor, Thompson and Crosby, JJ.