18 N.Y.S. 389 | N.Y. Sup. Ct. | 1892
The action was to recover damages for a bodily injury sustained by the plaintiff Emma McCabe, as the result of a fall on the crossing of one of the defendant’s streets. The plaintiff Joseph was joined with her as her husband, and no question is made in respect to the practice. The plaintiff lived on Ellieott street, which was crossed by Genesee street at some distance north of her house. At the date of the accident, Genesee street was being laid with an asphalt pavement, and at its crossing with Ellieott street was torn up and excavated for the foundation of the new pavement on both sides of the street-railroad tracks, which ran in the center of the street, while a temporary crossing of planks had been laid in line with the center of Ellicott street. Early in the evening of September 28th the plaintiff and her husband set out from their home to go to a market situated on Ellieott street north of Genesee. It was not yet dark when they reached Genesee street, and, seeing the condition of the crossing, they took the plank-way, and passed ■over without difficulty. The plaintiff testifies: “I did not take any particular notice of the street, only I saw it was torn up. When we were going up to the market we walked on the planks that were laid across Genesee street. These planks were laid right on the center of Ellieott street across Genesee street. There was not anything laid in the place where the cross-walks ordinarily were. * * * The street was torn up on’each side of the railroad track when we went up. The pavement was all taken out. I saw there was no pavement or cross-walks there.” After doing their marketing, they returned on the west side of Ellieott street. It was dark when they reached the crossing, and there were no lights at the corners. An electric lamp, suspended from a pole at the corner which they first came to, was not lighted: but instead of taking the plank-way, as before, they continued on, in the dark,»in the direct line of the sidewalk of Ellieott street, across the unpaved space which they had observed in going up, from which, as they had observed, the cross-walk had been removed, and across the railroad tracks. All this was accomplished in safety, but, when stepping off from the south side of the railroad track, the plaintiff’s foot went into the excavation, and she was thrown down, and received the injury of which she complains. The only explanation which the plaintiff and her husband attempt to make of their failure to cross by the plank-way on their return from the market is that there was a carriage on it as they crossed. But the husband testifies that he did
Judgment and order appealed from reversed, and a new trial granted, with costs to abide the event.