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Mayhood v. City of New York

119 A.D. 100 Court Second Department, Decision date 1907-04-19 English

Delivered by *101 Gaynor, J.:

Contents

Majority

p. 100
Ida S. Mayhood, Appellant, v. The City of New York, Respondent.
Second Department,
April 19, 1907.

Headnote

Negligence— municipal corporations,— defective street — erroneous ^ - nonsuit, -
When, in an action to recover from a municipality for injuries received-from a ■ fall on a defective sidewalk, it. is shown-that the sidewalk was. broken and that. there were, depressions and holes, in.one of which the plaintiff caught'her foot, á nonsuit is' error, although. the plaintiff was familiar wdth the place, and although the fall may have been partially caused by her slipping upon ice. Under such circumstances the negligence of the defendant and the contributory negligence of the plaintiff are for the jury, .
Appeal by' the plaintiff, Ida S. Mayhood, from -a judgmént of the Supreme Court, in favor of the defendant, entered in the office of the clerk of the county of -Kings on the 30th day of April, 1906, • upon the dismissal of the complaint by direction! of the court after a trial at the Kings County Trial Term, and also from .an order entered in said clerk’s office on the 7th day of May, T9-0.6, denying the plaintiff’s motion for a new trial made upon the minutes..
Robert Stewart [Ralph G. Barelay with him on the brief], for the appellant,. . .
James D. Bell [James W. Covert and William B. Ellison. with him on the.brief], for the respondent.

The case presented by the plaintiff was very much lacking in precision ; but still the jury could have found that the flag sidewalk for a considerable distance where she fell was broken and defective; that there were depressions and holes; that where she fell one set of flags across the sidewalk were higher than the adjoining set; that as she slipped to some extent on a piece of ice her foot was caused to.go into q hole up to her ankle,- and that the going of her foot into the hole threw her down and hurt her. It cannot be said as matter of law that the ice was the proximate cause, for it was at least a" question of fact whether it was the ice which caused her to fall. Hor was the fact that she was familiar with the place and knew it to be dangerous sufficient to justify the non-suit. The fact that one goes over a defective sidewalk is not negligence as matter of law (Bullock v. Mayor, 99 N. Y. 654 ; Pomfrey v. Village of Saratoga Springs, 104 N. Y. 459 ). The case of a street torn up for repair, and littered (Whalen v. Citizens' Gas Light Co., 151 N. Y. 70 ), or where a person deliberately steps on a dangerous obstruction or defect ( Weston v. City of Troy, 139 N. Y. 281 ), is entirely different. If one walks through such litter, or knowingly and intentionally steps on a dangerous place, he takes the risk. It is not here intimated that this plaintiff was careful, or that the strfeet was dangerously defective; these are questions of fact for the new trial.

The judgment should be reversed.

Htrschberg, P. J., Hooker, Rich and Miller, JJ., concurred.

Judgment and order reversed and new trial granted,. costs to abide the event.

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