Keener v. Tilton

In alighting after dark from a trolley car of the defendant at a street crossing, plaintiff stepped into a hole in the pavement and fell. A judgment entered on a verdict for her damages has been reversed and the complaint dismissed.

The hole in the street was outside the defendant’s right of way. It was a rectangular depression eleven and three-quarters inches long and six inches wide. Lengthwise it formed a right angle with the track of the defendant and at its end nearer thereto was not more than two inches deep. There was uncontradicted evidence of its existence for at least one month before the accident. Whether claims had been made against the defendant for similar accidents the record does not show.

The trial judge left to the jury the question “ as to whether or not this depression was of such a character ás to charge

Argument for the defendant does not go so far as to assert that a carrier owes no duty at all to passengers in respect of hazardous conditions of the journey external to its own property and equipment. But the defendant does take the broad ground that a passenger when getting off the step of a street car must in all cases depend upon himself alone for protection against the possibility of his stepping into a depression in the highway which a municipality would not be bound to repair for the safety of pedestrians. We see no reason for establishing so substantial an exception to the rule which requires of carriers of persons that their undertaking be discharged with all due caution and forethought.

A hole in a street must be pretty deep before a pedestrian injured thereby can hold the municipality to payment of his damages. (Lalor v. City of New York, 208 N. Y. 431 .) This is a practical limitation upon the implied civil liability of municipal corporations respecting defective streets. Such residual governmental immunity in that field cannot be made to shelter proprietors of street railways against indifference in setting down passengers at insecure places on the highway.

The essential duty of a carrier may call upon it to safeguard a passenger against inconspicuous dangers of the road that should be known to it. (Dudley v. Smith, 1 Campb. 167; Schlessinger v. Manhattan Ry. Co., 98 N. Y. Supp. 840 .) It may be that the hole which caused this plaintiff’s fall was not exactly a trap. But was it self-evident that the risk of such a mishap was altogether remote even in the nighttime? Or that no convenient way of disclosing the pitfall to the plaintiff would have kept her on her feet? Matters of that kind were to be considered in deciding upon the quality of the conduct of this defendant’s servants in the circumstances. We cannot say that their conduct was so plainly sufficient that the question should not go to a jury.

(dissenting). The depression into which the plaintiff stepped was in a portion of the street paved with bricks. It was a few feet south of a crosswalk at a point where a street car would ordinarily be expected to stop in order to let off passengers. The depression, according to the plaintiff’s witnesses, was the “ length of a brick and the width of a brick ” and it appeared to these witnesses as if the surface of one brick in the pavement was an inch and a half or two inches below the surface of the other bricks. Stepping into that depression, the plaintiff fell, and for the injuries suffered in her fall, the street railway company has been held liable.

The duty to keep the street safe rests upon the city, but as Judge Loughran states in his opinion, “ a hole in a street must be pretty deep before a pedestrian injured thereby can hold the municipality to payment of his damages. (Lalor v. City of New York, 208 N. Y. 431 .) ” Freedom of the city from liability for damages caused to a pedestrian by a fall in a depression of less depth is not, I think, based upon any “ residual government immunity ” from liability for failure by the city to exercise reasonable care in the performance of its duty to keep the streets safe for those who use them, but rather on the ground that depressions in a sidewalk or crosswalk of a street, which are not “ pretty deep,” create no danger to a pedestrian so serious that the city in the exercise of reasonable care might have anticipated and should have guarded against the hazard. (Cf. Beltz v. City of Yonkers, 148 N. Y. 67 , and other cases cited by this court in Lalor v. City of New York, supra.) Since the defendant railway company is under no duty to keep the streets near its tracks in repair, liability for the plaintiff’s fall cannot be predicated upon the condition of the street. The defendant’s duty to the plaintiff was only to exercise “ ordinary care in furnishing a safe place to passengers to enter upon or alight from its cars.” (MacKenzie v. Union Ry. Co., 82 App. Div. 124 , 129; affd., 178 N. Y. 638 .) Its duty to its passengers is different from

The depth of the hole and the consequent danger which a reasonable man might apprehend is, nevertheless, an important if not decisive factor in determining both whether the city, in failing to repair the hole, has been guilty of want of “ due caution and foresight ” in the performance of its duty to keep the streets of the city in safe condition, and whether the carrier in stopping its car near the hole has been guilty of want of “ due caution and forethought ” in the performance of its duty to provide a safe place for passengers to alight. Here, no failure by the carrier to use due care has been shown unless it can be said that the employees of the company not only should have discovered the depression in this street, which had existed for a month, but should have realized that such depression made a usual stopping place of cars unsafe for alighting passengers, although the depression was so slight that the city was not under any duty to repair it. In measuring reasonable care, practical standards must be used, and it seems to me that there can be no finding of want of care under the circumstances of this case except by application of a standard almost fantastic in its disregard of realistic and practical considerations.

The judgment of the Appellate Division should be affirmed.

Finch, Rippey and Conway, JJ., concur with Loughran, J.; Lehman, Ch. J., dissents in opinion; Sears and Lewis, JJ., taking no part.

Judgments reversed, etc.