Ferguson v. Village of Waverly

112 N.Y.S. 891 | N.Y. App. Div. | 1908

Sewell, J.:

The action is brought to recover damages for an injury to the plaintiff occasioned by a fall upon a sidewalk on Broad street in the village of Waverly.- The principal question with which this court has to deal is whether the evidence was of such a character as to warrant a finding by the jury of negligence on the part of the defendant. There is little, if any, conflict in the evidence on this point.

It appeared that the plaintiff was passing over this walk when he stepped or slipped into a hole and broke his leg. The evidence on the part of the plaintiff tended to show that sometime prior to the accident some of the planks were broken and rotten; that about two months before the accident the attention of the street commissioner was called to that fact arid new plank were put in. It did not appear that the defect in the sidewalk through which the plaintiff received his injury was one resulting from the wear and tear of. ordinary use, or from natural decay. On the contrary, it was undisputed that the accident would not have occurred but for the fact , that a plank had been removed from the walk by the willful act of. some persons unknown: There was no proof that the defendant

had any actual notice of the defect or that it had existed for a sufficient time to charge it with constructive notice. The contrary was proved. The evidence clearly and undisputably shows that all of the planks were in place the day preceding the night of the accident. The evidence does not very clearly establish just when the , plank was removed, but it is unquestionably sufficient to-warrant the conclusion that it was less than an hour before the accident. Each of the defendant’s witnesses, Lewis F. Lord, George Legg, Adelbert Smith and Wesley H. Brougham, testified that he passed over the walk between eleven and twelve of the night in question; that the walk was in' good condition, no plank was broken of had been taken away and there was no hole in the walk.,

There is no arbitrary rule of law that charges a municipality with constructive notice oía defect, after a lapse of a certain time, under all circumstances. The rule is that the defect must exist for such a length of time as to enable the municipal authorities.to learn of its existencé and to repair it. A village is responsible only for the failure to discover a defect within a reasonable time. The defect must become known and notorious, and the municipality must have full opportunity, through its agents, to learn of its .existence and repair it, to impute notice and charge it with negligence. (Todd v. City of Troy, 61 N Y. 506.)

We are of the opinion that the interval between the removal of the plank and the accident was too short a time for the defect to become known and notorious, and that it would be manifestly unreasonable and unjust, under such circumstances, to impute negligence to the defendant. The judgment against the defendant should, therefore, be reversed and a new trial granted, with costs to abide the event.

All concurred.

Judgment and order reversed and new trial granted, with costs to appellant to abide event.