199 N.Y. 79 | NY | 1910
The defendant is a village municipal corporation containing about four thousand inhabitants and having about thirty-eight miles of sidewalk. The plaintiff fell on one of its sidewalks and sustained injuries, to recover damages for which this action is brought. The place where the accident occurred is in the principal part of the village. The sidewalk at that point is twelve feet wide and composed of three rows of cement blocks each having a surface measurement of four by four feet. Some months prior to the accident a sewer was constructed under the sidewalk at that point and thereafter one of the blocks in the middle of the walk settled so that at the time of the accident the outer north corner of such block was depressed one and one-half inches below the surrounding blocks. The inner north corner of such block was depressed one-half inch. The southerly edge of said block maintained its level so that there was a gradual slope from the south to the north edge thereof on the east side, extending from zero to one and one-half inch, and on the west side thereof extending from zero to one-half inch. The measurements here given are in accordance with the testimony of the only witness called by the plaintiff, who had made measurements thereof, and of all the witnesses relating thereto sworn by the defendant, except one, who says that the greatest depression was one and three-eighths inches, but, measured from the general level of the walk, was one and five-eighths inches. The plaintiff estimated that the greatest depression was three inches, and two of her witnesses estimated that it was from two to three inches, but neither of them would testify positively that the greatest depression was more than *82 one and one-half inches deep, and the actual measurements are so manifestly correct that they are accepted upon this appeal.
The plaintiff was a resident of the village of Perry and familiar with the depression in the sidewalk where the accident occurred. She had passed over that walk and seen such depression several times each day for months. At the time of the accident it was about ten o'clock in the forenoon, and she says that the fact of there being a depression in the sidewalk escaped her as she was passing people walking in the opposite direction. She caught the toe of her shoe at the place of the lowest depression, and it resulted in loosening the sole thereof and in so throwing her forward that, although she continued to take several steps, she was unable to recover her equilibrium and fell, causing the injuries for which the action is brought. Prior to the accident one or two persons had been seen to stumble at that place, and one of the trustees of the defendant, in whose store the defendant had long had desk room, had turned his ankle at the place of such depression. At the next meeting, after such trustee so turned his ankle, he reported the fact to the board of trustees and an informal direction was given to the street commissioner to call upon the owner of the adjoining property and request him to make repairs to the said sidewalk.
This court has frequently stated the rules of law governing municipalities in the care of their streets and sidewalks. Each case must stand upon its own peculiar facts and the application of such well-known rules of law to such facts. We will refer to some of the cases in this court where the rules of law have been stated.
In Beltz v. City of Yonkers (
In Hamilton v. City of Buffalo (
Again this court considered the liability of municipalities for an injury caused from lack of uniformity in the grade of a sidewalk in the case of Butler v. Village of Oxford (
By the decisions that we have mentioned and the language of the opinions therewith, this court has clearly held that municipalities are not, as a matter of law, responsible for injuries arising from slight depressions or differences in grade in walks. There are exceptions, however, when even a slight depression or difference in grade is peculiar and specially calculated to result in injury to pedestrians, in which the liability of municipalities for personal injuries should be sustained. *85
Among the decisions in this court where an exception is recognized are Fordham v. Gouverneur Village (
In the case now before us the plaintiff seeks to maintain the judgment, not so much by reason of the extent of the depression in the sidewalk as from the fact that she was able to show that one or two persons had tripped upon the difference in grade prior to her accident, and one of the trustees of the village had slightly turned his ankle when walking over the depressed block and he had reported the fact to the board of trustees and they had informally requested the street commissioner to request the owner of the adjoining lands to repair the sidewalk.
It does not appear that any one had ever fallen at the point where the plaintiff's accident occurred. A person may trip or *87 seriously turn his ankle at a place where there is a very slight difference in the grade of the ground or walk on which he is traveling. The evidence presented in this case, so far as the tripping of others is concerned and the turning of an ankle, does not make the municipality liable as a matter of law within the rule established in the Gastel case; neither do we think that the liability is changed by reason of the fact of what one of its trustees said at a meeting of the board. The danger of such a depression is not determined by what some one person may say. His statement may arise from excess of caution or from some peculiar and not to be expected personal experience. The question comes back again as stated in the Gastel case whether there is evidence of such a fundamental condition of the thing under scrutiny as will at least permit the inference that the municipality has failed to discharge the duties reasonably and fairly imposed upon it by law.
The defect in the sidewalk in this case was so slight that it is not in excess of similar defects found in great numbers in every village and city. To hold a municipality for accidents occurring from such defects would entail upon them a burden beyond that which they are reasonably required to bear.
In cases where the depression or difference in grade is slight, even where under the rules of this court they are so slight that as a matter of law they are not ordinarily sufficient on which to base a recovery against a municipality, evidence of the experience of others in tripping or falling over the same is competent for the purpose of showing, if true, that there is something peculiar or unusual about the formation of the difference in grade or of the depression that makes it dangerous to an extent that an ordinarily prudent person in charge of sidewalks, with knowledge of such peculiar depression would repair it. The judgment should be reversed, and a new trial granted, with costs to abide the event.
CULLEN, Ch. J., GRAY, VANN, WERNER, WILLARD BARTLETT and HISCOCK, JJ., concur.
Judgment reversed, etc. *88