Parcells v. City of Auburn — 28 N.Y.S. 471

Majority

p. 471

(77 Hun, 137.)

PARCELLS v. CITY OF AUBURN.

(Supreme Court, General Term, Fifth Department.

April 12, 1894.)

Headnote

Municipal Corporations—Defective Sidewalk—Contributory Negligence.

Where plaintiff was injured by stepping in a hole in a sidewalk, a finding that she was not negligent is sustained by evidence that it was dark at the time, that the hole was partially concealed by grass, and that plaintiff had been in the city only a few weeks, and had passed over the sidewalk only once or twice, though she knew that there were defects, but supposed she had passed them.

Appeal from circuit court, Cayuga county.

Action by Maude Marie Y. Rarcells against the city of Auburn to recover damages for personal injuries. From a judgment entered on a verdict in favor of plaintiff, defendant appeals. Affirmed.

Argued before DWIGHT, P. J., and LEWIS, HAIGHT, and BRADLEY, JJ.

W. H. Burby, for appellant.

Frank E. Cady (S. E. Bayne, of counsel), for respondent.

The plaintiff recovered a judgment against the defendant for $9,000 for injuries she sustained by a fall upon a defective sidewalk in the city of Auburn. The appeal was from the judgment, and only one point is presented for our consideration by the appellant’s counsel. He makes no question as to the amount of the recovery, nor as to the defendant’s negligence, but claims that the plaintiff failed to show herself free from negligence contributing to her injuries. An examination of the evidence has satisfied as that there was sufficient evidence to justify the trial court in submitting that question to the jury. The plaintiff’s fall was caused by her stepping into a hole in the sidewalk. It occurred in the evening. It was dark at the time. The hole was partially concealed from view by grass that had grown in and about it. Immediately before stepping into the hole, she had met four people walking upon the sidewalk, two abreast. She" turned aside to pass them, and in so doing, without noticing the hole, stepped one of her feet into it and fell. She had been in the city but a few weeks before the accident occurred. She had passed' over this walk only once or twice. She knew that there were defects in the walk. She had passed some of them on this occasion, before arriving at the one in question. She testified that she supposed she had passed by the bad places before she met the people. The jury was justified from the evidence in finding that the plaintiff was free from negligence contributing to her injuries. The -verdict seems to be fully sustained by the evidence. The judgment should be affirmed. All concur.