103 N.Y.S. 1135 | N.Y. App. Div. | 1907
Lead Opinion
Judgment' and order affirmed, with costs, on the opinion of Mr Justice Kelly at Trial Term.
Hirschberg, P. J., Woodward" and Miller, JJ., concurred ; Gather, J., read for reversal, with whom High, J., concurred.
The following is the opinion of Mr. Justice Kelly delivered at Trial Term:
The plaintiff sued to recover damages sustained, as she alleged, through the negligence of the defendant in failing to keep the sidewalk in reasonably safe condition. She testified that while walking east on the north side of Forty-first street, in the borough of Brooklyn, on the' evening of November 3, 1903, the tip of her right shoe caught under a projecting flagstone, causing her to fall. • Her evidence was that the shoe was caught so that it required some force to remove it. She was corroborated by her husband, who was with her. A witness, living on the .opposite side of the street, saw
Whether the condition claimed by the plaintiff raised an issue as to whether the walk was reasonably safe was vigorously contested by the corporation counsel. He insists that the court should say as matter of law that the defect was not such as t'o warrant a finding by the jury that the situation was likely to result in accident. No evidence was introduced of previous accident occasioned by pedestrians catching their feet in the hole or space under the flagging^ and it was conceded that the street was a regularly paved street, built upon and used by the public.
Is this a case requiring the court to submit the question whether the highway is in reasonably safe condition to the jury? The absence of evidence of previous accident is important. Of course, a condition not intrinsically unsafe which has uniformly proved sufficient and safe is not changed to one insufficient and unsafe x simply because one out of hundreds or thousands meets with an accident in encountering it. The policemen called by the city testified that they had passed over this uneven condition of sidewalk repeatedly and had never heard of or anticipated accident or danger from it. When reasonable men may differ as to whether or not the
The jury have found the facts in favor of plaintiff, and I think the verdict must stand. Motion denied.
Dissenting Opinion
The action was for damages to the plaintiff by a defect in a sidewalk. The testimony for the plaintiff of the defect is as follows:
The plaintiff testified that as she was walking with her husband after dark “ my foot caught under a flagging and threw me,” She did not examine" the defect then, but did. after she got well, but does not say what it was or describe it. She says on cross-examination that she could not get her foot out after she fell, her husband had to pull her foot out from under the flagging in order to lift her up, it was held fast there “ for several moments.” In her preliminary examination when she filed her claim against the city she says she went back and examined the defect the night of the accident. The testimony of another witness that the plaintiff was out in the street next day,, and called on an acquaintance, is not disputed. Her hurt
The evidence for the defendant was as follows :
A civil engineer was sent to examine the defect after the accident ; by his actual measurements one section at the joint ran from If to If'inches higher than the next section; at the edge small pieces were jagged or chipped off. Three other witnesses and two policemen who took no measurements testified that the rise was about 1 to If inches. No one mentions any hole.
The verdict was against the weight of evidence. That of the ' plaintiff and her husband of her foot being cast in a hole under the sidewalk for several minutes, so that he had to pull it out in" order to lift her up, is an obvious exaggeration. There is no evidence of such a hole. Even the husband’s, that the top of one flag was “ about” 2,inches higher than the next one (which he says is a surmise) is inconsistent with it; and the wife does not describe the defect at all. The statement of the husband that one could get his foot “under where the edge of one met the edge of the other” is a' mere conclusion and not evidence. The other witness for the plaintiff mentions no hole. The plaintiff could have had measurements taken by a competent and trustworthy person, but didnót. The evidence of the civil engineer who did make accurate measurements should outweigh allsurmises and loose testimony, if credible, andthere is no reason to say it is not. The evidence that one flag appeared to
A verdict should have been directed for the defendant at the close of the case. The evidence in its entirety showed that the defect was too slight to base a charge of negligence on against the city. (Butler v. Village of Oxford, 186 N. Y. 444). Ho rule of perfection can be applied to a municipal corporation any more than to any- one else. This world is not perfect and the affairs of men are not held to such a rule. There are many places in the streets where one may stub his toe which are not negligent defects, and on private property, also.
The judgment and order should be reversed.
Rich, J., concurred.