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Skelton v. Larkin

31 N.Y.S. 234 Court N.Y. Gen. Term Decision date 1894-12-04 English

Delivered by *235 PUTNAM, J.

Contents

Majority

p. 234
(82 Hun, 388.)
SKELTON v. LARKIN.
(Supreme Court, General Term, Third Department.
December 4, 1894.)

Headnote

1. Neqlioence—Evidence,
In an action for personal injuries, caused by the falling of a flagstone which had been standing against a tree in the sidewalk in front of the defendant’s premises, the falling of the stone and the injury to plaintiff are sufficient evidence of defendant’s negligence to go to' the jury.
3. Same—Obstruction on Sidewalk.
Where the obstruction of a sidewalk is forbidden by ordinance, placing a flagstone against a tree in the sidewalk in front of one’s premises without permission is a nuisance, and renders him liable for injuries caused by it.
Appeal from circuit court, Ulster county.
Action by Robert T. Skelton, an infant, by his guardian, against Matthew Larkin, Jr., for personal injuries. There was a judgment in favor of plaintiff, and defendant appeals.
Affirmed.
On the 5th day of May, 1885, while the plaintiff, then a boy of five, was playing in a public street of the city of Kingston, in front of the premises of defendant, a large flagstone, which stood on the sidewalk near the curb, leaning against a tree, slipped from the sidewalk into the gutter, and injured plaintiff’s right foot, so that amputation of the toe was necessary. The stone which caused the injury was one of four flagstones which had been taken up from the pavement by defendant’s contractor, and suffered to stand upon the sidewalk for a year or more (according to the evidence for the plaintiff),— two on the side of the tree facing the building, one of which had been broken and removed before the accident, and two on the side of the tree facing the street. Defendant contended that the stone was placed against the tree only a few days before the accident. The action was brought August 20, 1887.
Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.
A. T. Clearwater, for appellant.
D. M De Witt, for respondent.

We think the question of defendant’s negligence was properly submitted to the jury. It was said in Kunz v. City of Troy, 104 N. Y. 344 -348, 10 N. E. 443 , “The death of plaintiff’s intestate, caused by the falling of the counter, demonstrated that it was a dangerous obstruction on the sidewalk.” So, in this case, the slipping of the stone and the injury to plaintiff was evidence, tending to show defendant’s negligence, proper to be submitted to the jury.

So, also, the question of contributory negligence was for the jury. The plaintiff was non sui juris. In the case last cited, it was held that it was not, per se, negligence for a parent to allow children to play in the street. “It may or may not be negligence, depending upon circumstances. It was, we think, for the jury to determine whether the father of the intestate was guilty of negligence.” . McGuire v. Spence, 91 N. Y. 303 . So in this case.

It is claimed, however, by the defendant, that the stone which caused the injury was placed where it was by an independent contractor under defendant a few days before the accident, and hence defendant was not liable. But there was evidence tending to show that the stone had remained in the position in which it was at the time of plaintiff’s injury for over a year. The jury, from the testimony, could have found that such was the case. If this obstruction in the street, although placed there in 1883 by McLaughlin, a contractor under defendant, was allowed to remain by the latter, after the completion of the contract, over a year, no doubt could be entertained as to his liability, if the stone was negligently placed.

If we were to assume the fact to be, as the witness Purvis testified, that the latter placed the stone which caused the injury to plaintiff only two or three days before the accident, such assumption would not call for a reversal of the judgment. The obstruction was in one of the public streets of the city of Kingston, in violation of a city ordinance; and it was not claimed that it was so placed by permission of the municipal authorities, or that defendant was authorized by the city to disturb the street. Hence, it was in fact a nuisance in the street, and defendant was liable for damages in consequence of its being put where it was, although so placed by a contractor under him. Creed v. Hartman, 29 N. Y. 591 ; Storrs v. City of Utica, 17 N. Y. 104 ; Turner v. City of Newburgh, 109 N. Y. 301 -306, 16 N. E. 344 ; Brusso v. City of Buffalo, 90 N. Y. 679 .

The ordinance of the city of Kingston was competent evidence on the question of defendant’s negligence. Knupfle v. Ice Co., 84 N. Y. 488 .

We think the case was properly disposed of by the learned trial court, and can discover no errors that should cause a reversal of the judgment. The various questions raised on this appeal are so old, and have been so often considered by the courts, that we do not deem it necessary or desirable to write at length in the case. Judgment should be affirmed, with costs. All concur.

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