97 N.Y.S. 642 | N.Y. Sup. Ct. | 1906
The plaintiff sued to recover damages sustained, as she alleged, through the negligence of the defendant in failing to keep a 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 her fall. There is no substantial dispute as to the condition of .the flagging. It was made of some patent substance and, at the place where the plaintiff caught her foot, two of the artificial flagstones joined. They were laid by different makers at different times; and the upper or easterly stone was, as plaintiff claimed, two inches, and as defendant conceded, one and three quarter inches above the lower. This condition had existed for more than a year. Defendant’s policeman and other witnesses testified that they had no knowledge of the hole or space under the higher flagstone in which plaintiff’s shoe was caught. Photographs were introduced in evidence which plaintiff averred showed the existence of the hole, and which defendant insisted showed that the alleged defect consisted simply in the elevation of one stone over the other for the space indicated. The claim was presented to the city at a time when the flagging remained in the condition in which it was on the night of the accident, but no investigation appears to have been made as to the existence of the hole. Therefore, on this trial we have the positive statement of plaintiff and her witnesses met by the negative testimony of the city from witnesses who say they never saw the hole or space.
Whether the condition claimed by the plaintiff raised an issue as to whether the walk was reasonably safe was vigor
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 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 condition was such as to call on the city officials to anticipate accident, the question is for the jury. Beltz v. City of Yonkers, 148 N. Y. 67. Is this such a case ? The Court of Appeals has decided that minor defects and irregularities in sidewalks are not such defects as will justify the submission of the question to the jury, because no street can be made and maintained in absolutely perfect condition; and the court decided as matter of law in the Beltz case that a depression of two and one-half inches was not dangerous. In Hamilton v. City of Buffalo, 173 N. Y. 72, a depression of four inches in a sidewalk was held not to be dangerous as matter of law. Judge Vann, in his dissenting opinion, expresses doubt as. to the line separating the question, as one of law, from the question of fact. This difficulty is always presented in this class of litigation. Here we know an accident happened; there is no suggestion of contributory negligence, and the jury have apparently found that a hole or space existed into which the toe of the pedestrian’s boot entered and was held fast. They have found that she told the truth when she stated, specifically, that she did not
The jury have found the facts in favor of plaintiff and,, I think, the verdict must stand.
Motion denied.