| N.Y. App. Div. | Oct 11, 1907
We are inclined toehold, as matter of law,-that danger was not reasonably to be anticipated from the presence of the hole in which the plaintiff was injured, and hence the defendant is not liable. In Butler v. Village of Oxford (186 N.Y. 444" date_filed="1906-12-18" court="NY" case_name="Butler v. . Village of Oxford">186 N. Y. 444), the leading cases in this State dealing witli irregularities in sidewalks of substantially the size of the one which caused the plaintiffs injury were carefully reviewed. It seems, generally (1), that an irregularity of this size, which is in the form of a depression, is such as not, reasonably to suggest danger; but (2), on the other hand, where the depression is of this or greater depth, and the hole is .so small, or of. such a character that a pedestrian’s foot is liable to become fastened in tip' hole or caught under its edge, or where the, irregularity is an abrupt upward obstruction above the general level of an eve , sidewalk, whose presence would not in the ordinary use of the st- dt be anticipated,. a question of fact is presented as to the defendant’s negligence; (See cases cited in the Butler case.)
• In our opinion, the hole which caused the plaintiff’s injury falls in the first classification. The judgment should be reversed.
Jenks, Gaynor, Rich and Miller, JJ., concurred.
Judgment and order reversed and new trial granted, costs to abide the event.