Dickerman v. Weeks

This is an appeal by the plaintiff from a judgment dismissing the complaint, at the close of plaintiff’s case, as against the city. No appeal has been taken from the judgment in favor of the defendant Weeks. The action is to recover damages for personal injuries sustained through the alleged negligence of the city in permitting the sidewalk on the southerly side of Thirty-First street, between Second and Third Avenues, to be in a defective condition. About 11 o’clock in the evening of February 11, 1902, the plaintiff, in company with her sister and niece, after attending the Third Avenue Theater, between Thirty and Thirty-First streets, walked east upon the southerly side of Thirty-First street for the purpose of taking a Second Avenue car. The sidewalk at the point where the accident occurred consisted of flagstones. A building was being erected opposite this point; but

The facts proven, a stone in the sidewalk with an end raised five or six inches, sufficiently to allow plaintiff’s foot to go beneath it, no lights or guards of any kind, that condition existing for at least a month, and at least one prior accident, were enough to take the question of the city’s negligence to the jury. The rule as to defects in the street seems to be established in the case of Beltz v. City of Yonkers, 148 N. Y. 67 , 42 N. E. 401 , cited and followed in Hamilton v. City of Buffalo, 173 N. Y. 72 , 65 N. E. 944 :

“Where the defect is of such a character that reasonable and prudent men may reasonably differ as to whether an accident could or should have been reasonably anticipated from its existence or not, then the case is generally one for the jury.”

We think that an elevation of five to six inches of the end of a flagstone on the sidewalk of a busy street in the center of a populous city cannot as matter of law be held to be such a slight or trivial defect as "to relieve the city of responsibility for its continuance. The length of time it had continued, together with the proof of the prior accident, was enough to require that the jury should be allowed to determine whether the defect considering the locality was one from which danger of injury should reasonably have been anticipated, and whether the city had or ought to have had notice of its existence. Smith v. Mayor, 17 App. Div. 438 , 45 N. Y. Supp. 239 . In this case the defect had existed for a month.

In Pomfrey v. Village of Saratoga Springs, 104 N. Y. 464 , 11 N. E. 43 , the defect had existed for two weeks. The court said:

“The municipal authorities do not fill the measure of their responsibility, however, by acting simply when they have actual notice, but they owe to the public the duty of active vigilance; and whether street or sidewalk has been out of repair for any considerable length of time, so that by reasonable diligence they could have notice of the defect, such notice may be imputed to them.”

In Brush v. City of New York, 59 App. Div. 12 , 69 N. Y. Supp. 51 , the defect had existed for a month. Held a question for the jury.

Upon the question of contributory negligence we agree with the learned court, who denied the motion to dismiss upon that ground, that it was a question for the jury.

O’BRIEN, P. J., and McLAUGHLIN, J., concur.

I think the judgment should be affirmed. The plaintiff testified that:

“They were building a church and a church house, and in front of the church house I'fell. My right foot went under a stone, and I fell forward on my knees and abdomen. I could not rise.”

She further testified that a watchman came along with a lantern to help her, and with the aid of the lantern she saw that she had fallen over a stone which was raised towards Third avenue, and the dirt was out from underneath it. It was raised five or six inches. She was corroborated by her sister and her niece, who were with her. Upon cross-examination she testified that it was very dark, but that she could' see that there were building materials standing near the curb; that there was a fence built in front of the building which was being constructed; that there were some planks laid along on the sidewalk; that building operations were going on at that point; and that she had been through the street several times before the accident. Another witness testified that about the middle of January, in the same year, she was walking towards Second avenue on Thirty-First street, on the south side of the street; that she tripped on a stone and hurt her knee very badly; that the stone was raised about four or five inches, just enough for her foot to go under and trip. She was shown a photograph of the stones over which plaintiff fell, and she said it was a photograph of the stone over which she fell. There was no evidence that the city had notice of the condition of this sidewalk; and no evidence- of the-condition of the sidewalk prior to the accident, except the testimony of the witness who identified-the stone in the photograph, taken two days after this accident, as the stone over which she fell. At the end of the plaintiff’s case the court dismissed the complaint upon the ground that there was no evidence of negligence on the part of the defendant the city of New York, and the plaintiff appeals.

I think that this dismissal can be sustained upon both the grounds —that the evidence is not sufficient to sustain a finding of the defendant’s negligence, and not sufficient to justify a finding that the plaintiff was free from contributory negligence. The sidewalk in question was in front of a lot upon which a church and church house was being built. There were building materials in the street and planks were piled on the sidewalk. During the construction of buildings fronting upon a street there is necessarily some disturbance of the sidewalk; and certainly the city is not responsible if persons engaged in such building operations permit the sidewalk to-become temporarily out of repair, and it would, I think, be imposing too great a burden upon a municipal corporation to hold it responsible for inequalities in a sidewalk in front of which such building operations are being carried on. Assuming that the jury would.

I also think that the evidence fails to show that the plaintiff was free from contributory negligence. She knew that this building was being constructed; that there were building materials in the street and planks upon the sidewalk, and yet, on a dark night, without making an effort to ascertain the condition of the sidewalk, she walked over it and the accident resulted. There is no dispute but that she could have used the sidewalk upon the other side of the street, and avoided any danger of the sidewalk being out of repair from the building operations. As was said in Weston v. City of New York, 139 N. Y. 281 , 34 N. E. 780 :

“The presumption which a wayfarer may indulge that the streets of a city are safe, and which excuses him from maintaining a vigilant outlook for dangers and defects, has no application where the danger is known and obvious.”

In Walsh v. Central N. Y. Tel. & Telegraph Co., 176 N. Y. 163 , 68 N. E. 146 , it was held that, where it appears that a street has been disturbed, a person using it is bound to exercise unusual care in passing the locality; and in McDonald v. Holbrook, Cabot & Daly Co., 106 App. Div. 90 , 93 N. Y. Supp. 920 , the same rule was applied. There is no evidence that the plaintiff exercised any care in using this sidewalk, let alone the unusual care that the situation demanded. She walked along this sidewalk upon a dark night, knowing that building operations were in progress and that there were building materials in the street and planks upon the sidewalk, without looking for any obstruction or taking any measures to ascertain the condition of the sidewalk. That, I think, was a failure to exercise the care that is required of one using the street.

On both grounds, therefore, I think the court was justified in dismissing the complaint.

PATTERSON, J., concurs.