Menzies v. Interstate Paving Co.

94 N.Y.S. 492 | N.Y. App. Div. | 1905

Miller, J.:

The plaintiff has recovered a judgment for personal injuries, alleged to have resulted from-a fall caused by a defective sidewalk or crosswalk at the intersection of two city streets. It appears that the defendant paving company was engaged in tearing up the street, preparatory to paving, pursuant to a contract with the city; that the stones forming the crosswalk had been loosened and somewhat displaced, and. that a hole two and one-half feet in depth from the surface of the sidewalk had been formed in the gutter at or near the place where the plaintiff fell. ■ But it does not appear that-the plaintiff’s fall was occasioned either by her stepping into this hole or stumbling against the loosened stones. Both she and her husband, who was with her, testified that they did not know what caused her to fall. The record discloses a fall in close proximity to defects in the crosswalk, with the plaintiff in court and utterly failing to shed any light on the cause of such fall. T-lie fact that a defective condition of the street might have caused the accident is not sufficient. If the plaintiff could not account for it, certainly a jury should not be permitted to speculate, and without some evidence showing, more than a mere possibility, it was error to submit the: case to the jury.

The judgment and order should he reversed, and a new trial ■granted, costs to abide the event.

Hirschberg, P. J., Bartlett, Jenks and Rich, JJ., concurred.

Judgment and order reversed and new trial granted, costs to abide the event. ‘