Graham v. City of New Rochelle — 120 A.D. 414

Majority

p. 414

Catherine Graham, Respondent, v. The City of New Rochelle, Appellant.

Second Department,

June 7, 1907.

Headnote

IT egligence — municipal corporations—- steps projecting upon sidewalk.

A'city is negligent.in allowing a sidewalk to.be incumbered for along period of time, with flagstones forming a .step, projecting eleven inclies.over the pavtid walk, and leaving only two feet and one inch between the obstruction and the " curb, .

Appeal by the defendant, The City of New Rochelle from' a judgment of the County Court of Westchester-ebniity in favor of the plaintiff, entered in the office-of the'clerk of said county on the

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20th day of September, 1906, upon the verdict of a jury for $1,200,' and also from an order entered in said clerk’s office on the 5th day of October, 1906, denying the defendant’s motion for a new trial made upon the minutes.

Joseph T. Brown, Jr. [ William D. Sawyer with him on the brief], for the appellant.

Michael J. Tierney, for the respondent.

The plaintiff’s recovery is for injuries sustained in consequence of ¡falling over an obstruction in one of the public streets of the city of New Rochelle, on the night of January 13, 1906. The obstruction consisted of three flagstones piled on the sidewalk by an abutting owner in order to make a step to a slight embankment at the inner edge of the sidewalk. The obstruction had been allowed to remain on the sidewalk for a long period of time, and the questions, both of the defendant’s and of the plaintiff’s negligence, were properly submitted to the jury in a careful charge, to which no exception was.or could have been reasonably taken by the defendant. *

The main contention by the appellant appears to be that it was •not negligence on behalf of the city to permit the step, consisting of the three flagstones placed one on top of the other, to remain on the" sidewalk, the view taken being that the obstruction was not danger-ous, but was justified by the adjudicated cases which uphold the propriety of maintaining carriage or stepping stones upon the sidewalks at or near the curb. I see no analogy. In the cases where such carriage stones have been justified they were not of unusual size, and were so, located as to still leave sufficient room for the passage of the. public. In this case, however, there is evidence tending to prove that the entire sidewalk at the place in question was only three feet in width, that the stones which formed the obstruction extended over eleven inches of the paved walk, leaving only two feet and one inch between the obstruction and the curb. The jury has found, under the charge of the learned county judge,, submitting that question to them, that in the cirbumstances the step constituted a dangerous obstruction, and, in view of its location and

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the very narrow sidewalk, the conclusion could not be successfully impeached. ' - - ' ! - '

The judgment-and order should be affirmed.

Present — Hiesohberg, P.- L, Woodward, Jenks,. Gaynór and Miller, JJ. ' -

Judgment and order of the County Court of Westchester county unanimously affirmed, with costs.