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Suchovalsky v. City of New York

130 N.Y.S. 112 Court N.Y. App. Term Decision date 1911-06-29 English

Delivered by BIJUR, J.

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p. 112
SUCHOVALSKY v. CITY OF NEW YORK.
(Supreme Court, Appellate Term.
June 29, 1911.)

Headnote

Municipal Corporations (■§ 806*)—Defective Streets—Injuries to Pedestrians—Contributory Negligence.
A pedestrian on a street in such bad condition that it is difficult to cross, who does not notice where he is, and who walks straight ahead without looking where he is going, is guilty, as a matter of law, of contributory negligence, precluding a recovery for injuries by falling into an excavation in the street.
[Ed. Note.—For other eases, see Municipal Corporations, Cent. Dig. §§ 1678, 1682; Dec. Dig. § 806.*]
p. 113
Appeal from Municipal Court, Borough of Manhattan, Fourth District.
Action by Abraham Suchovalsky against the City of New York. From a judgment for plaintiff, defendant appeals.
Reversed and new trial ordered.
Argued before SEABURY, GUY, and BIJUR, JJ.
Archibald R. Watson (Theodore-Connoly and Loyal Leale, of counsel), for appellant.
Goldstein & Goldstein, for respondent.

This is an action to recover damages for personal injuries sustained by the plaintiff by falling into an excavation in one of the streets of the city of New York. On a previous appeal, this court reversed a judgment in favor of the plaintiff ( 126 N. Y. Supp. 699 ), on the ground that there was no evidence that the defendant had actual knowledge of the excavation, or that it existed for such a length of time as to justify the imputation of knowledge on which to predicate negligence for failure to properly guard the excavation.

It is unnecessary to determine whether the same reasons require a reversal on this appeal; for it appears on the plaintiff’s own testimony that he was guilty of contributory negligence. He testified that he did not notice where he was, and that he walked straight ahead, without looking where he was going. Plaintiff’s own witnesses admit that the street was in such bad condition that it was difficult to cross. A typical answer of the plaintiff was the following:

“It was a dark day, and I did not notice where I was.”

Judgment reversed, and new trial ordered, with costs to appellant to abide the event. All concur.