23 Misc. 2d 919 | N.Y. App. Term. | 1960
The city may not be charged with negligence solely by reason of the fact that it located and maintained a manhole cover on the sidewalk in connection with a useful public purpose. Unless there is proof of a defect in construction or maintenance, or that it was not constructed flush with the sidewalk or that it was obviously dangerous to pedestrians, there is no warrant for a finding of negligence and liability does not arise.
The existence of a hole in the rim of the cover, approximately two inches wide, according to plaintiff, and about one and one-eighth inches wide according to defendant, for the purpose of permitting a hook to be inserted for removal of the cover, is not such a condition as would warrant anticipation thereof as a source of danger to pedestrians.
The cover in question had been used by the city for almost 45 years for sidewalk purposes and there is no evidence of prior accidents involving the same or similar covers to indicate that the accident in question should have been foreseen. Nor was there anything in the construction or location of the cover which should have forewarned the city that it was likely to prove dangerous to pedestrians.
Consequently, the complaint should have been dismissed and the judgment may not be permitted to stand.
The judgment should be reversed, with costs, and complaint dismissed, with costs.
Concur — Hecht, J. P., Aurelio and Tilzer, JJ.
Judgment reversed, etc.
