45 N.Y.S. 239 | N.Y. App. Div. | 1897
The plaintiff, the owner of a cab, was driving through one- of the streets of ..the city of Hew "York between nine and ten o’clock - at night, when, in consequence of a depression in the street,, caused by a sinking of the pavement, his cab was injured; and .this, action is' brought to recover the amount expended.in repairing the cab.
The remaining question is: as to whether or not this settlement of, the pavement of the street created a condition from which .a prudent person would anticipate • oi' foresee an injury to .a person using the • street' with care. I think this was a question for the jury. As before- stated, we must be careful not to -ask too much of a.munic-. i-pal corporation. Its duty is-confined to keeping a street or roadway in a reasonably safe condition, considering the úse to which it is to be quit. Here, however, wTas a street in. a crowded part'of the city, entirely surrounded by buildings, and upon which at ,all hours of the day or night there was ramie .or less traffic. The. street being •paved, those using it were justified in assuming that the pavement ivas kept: in su.ch repair that a vehicle driven along with ordinary. care and at an ordinary rate of speed would not meet with -an obstacle that would injure it. The existence in the middle of such a street of a depression in the pavement three to five, feet long,; a foot to two and a half feet.. in width and a foot deep, would necessarily tend to injure a vehicle- driven along the street, where the , wheels would strike upon the sides- of the depression. It seems to me obvious; considering .the character of the pavement and -the nature of the’ depression, that an injury would happen to any one driving over or in it at even a moderate'rate.of.speed..-
The judgment must be reversed and a new trial ordered, with costs to the appellant to abide the event.
O’Brien, Rumsey, Williams and Parker, JJ., concurred.
Judgment reversed, new trial ordered, costs to appellant to abide event.-