Dumary v. Village of Athens

Deyo, J. Appeal in the two above-entitled actions from judgments in favor of the respective plaintiffs, and from orders denying the defendant’s motions to set aside the verdicts and for new trials and denying the defendant’s motions for directed verdicts in its favor. The actions were brought for damages arising out of the personal injuries suffered by the plaintiff, Henrietta Dumary, when a difference of elevation of two flagstones in the sidewalk on Warren Street, village of Athens, Greene County, New York, caused her to turn her ankle and fall. The undisputed physical facts, as shown by the photographs, as well as the testimony offered on behalf of the plaintiffs, show, that the difference in elevation did not exceed three inches at most, and that none of the characteristics of a trap or snare were present. Under such circumstances, it is well settled that a municipal corporation cannot reasonably be expected to guard against such a minor hazard, and will not be held liable for damages in the absence of actual notice to it of the existence of such condition. (Lynch v. City of Beacon, 269 App. Div. 757, affd. 295 N. Y. [146] 872; Dowd v. City of Buffalo, 263 App. Div. 932, affd. 290 N. Y. 895; Butler v. Village of Oxford, 186 N. Y. 444; Minarsky v. City of New York, 270 App. Div. 1029; Goldberg v. City of New York, 269 App. Div. 852, motion for reargument and leave to appeal denied, 269 App. Div. 940; Hayes v. City of New York, 267 App. Div. 535.) The cases cited by the plaintiffs-respondents do no violence to this rule. Municipal corporations were not involved in Wilson v. Jaybro Realty & Development Co., Inc. (289 N. Y. 410) or Friedlein v. Dittmar (270 App. Div. 321). Although it can scarcely be argued that what is dangerous to the public, in the case of an individual, is less dangerous in the case of a municipality, there is a practical limitation upon the implied civil liability of a municipality respecting defective streets based, as Chief Judge Lehman said in his dissenting opinion in Keener v. Tilton (283 N. Y. 454, 457): “ * * * on the ground that depressions in a sidewalk or crosswalk of a street, which are not ‘ pretty deep, ’ create no danger to a pedestrian so serious that the city in the exercise of reasonable care might have anticipated and should have guarded against the hazard.” In Hamer v. Village of Whitesboro (287 N. Y. 816) notice to the village of the dangerous condition was proved. Adelska v. City of Troy (265 App. Div. 566) did not concern a mere difference in elevation, but an overhang of an abandoned trolley track, which a jury might very well have found constituted a trap or snare. Judgment in each case reversed on the law and facts, without costs, and the complaints dismissed. The appeals in each case from the orders denying the motions to set aside the verdicts and for new trials and denying the motions for directed verdicts are dismissed, without costs.