117 N.Y.S. 185 | N.Y. App. Div. | 1909
Lead Opinion
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,
The judgment should he reversed.
Jenks, Burr and.Miller, J.T., concurred; Woodward, J., read for affirmance. -
Dissenting Opinion
(dissenting):
The .plaintiff, a woman of sixty years of age, weighing something over 200 pounds, blind in one eye, tripped upon a flagstone in a sidewalk onTwenty-third street, between Fourth and Fifth avenues, in the borough of Brooklyn, and fell, sustaining injuries for which the jury has awarded a verdict of $1,000; The sidewalk in the vicinity of the accident appears to have been in good condition, but the particular flagstone which caused the accident had been gradually raised by the growth of the roots of a tree until, it was con-. ceded, the’end of it next to the tree, between the walk and the curb, was raised about two and one-llalf inches. The plaintiff’s witnesses place it as high, as five inches.. The plaintiff testifies that, walking along this sidewalk in the early afternoon of a day in February, she caught her foot under the edge of this .raised flag and fell forward, with the resulting injuriés. It is strenuously urged by defendant’s cotinsel that this elevation of the flagstone did not constitute actionable negligence on' the part of the defendant, and various cases, familiar to the court, are cited; but we are persuaded that the case was one for the' jury. -It. is true that -there have been cases of obstruction which, in some views, would not seem materially different from the one at baiy where the court has' held that there was no liability, but there was .evidence in this case.from which the jury might find that this flagstone projected above the general surface of the walk'five inches, and that it was'so raised that one might get his foot caught Under the samé, as the plaintiff testifies occurred in her case, and if this was the case, it clearly presented a, question of fact for the jury.-. Aside from tile oral testimony, there was a photograph in evidence, which not only shows a considerable obstruction, but it
This case was submitted to the jury upon a charge which was not objected to by the defendant. Several requests to charge, which, in so far as they correctly stated the law, had already been covered by the charge, resulted in a few exceptions, but I am not able to see that anything prejudicial to the defendant resulted. The charge, as it finally went to the jury, could not reasonably be misunderstood; ft was certainly not calculated to prejudice the case in favor .of the plaintiff, and the learned trial court having denied the motion for a new trial, and the evidence supporting the verdict, it should not be overruled here.
Judgment and order reversed and new trial granted, costs to abide the event. , ■_