Lavasseur v. Village of Haverstraw — 45 N.Y. St. Rep. 6

Majority

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Harriet A. Lavasseur, App’lt, v. The Village of Haverstraw, Resp’t

(Supreme Court, General Term, Second Department,

Filed February 8, 1892.)

Headnote

Municipal corporations—Negligence.

Plaintiff: was injured by the upsetting of a sleigh driven by her husband while turning into a street running along a side hill. The accident was caused by the sleigh sliding against an open brick gutter which was flush with the street. There was no proof that the gutter was improperly constructed or out of repair. Held, that the village was not liable.

Appeal from judgment of the Rockland county court dismissing the complaint, and from order denying motion for a new trial.

Irving Brown, for app’lt; Alonzo Wheeler (George W. Weiant, of counsel), for resp’t

Allison avenue in the village of Haverstraw runs north and south and it is crossed by Main street running east and west. On the north side of Main street a gutter is constructed across the foot of Allison avenue entirely made of brick; the same are flush with the street at the beginning and end of the gutter. The gutter is three feet wide and level at the center some five inches. Allison avenue at or near the junction with Main street slopes a very little to the east The plaintiff while being driven in a sleigh by her husband when the streets were somewhat slippery with snow and ice in turning the corner of Allison avenue into Main street was upset and thrown out of the sleigh and injured. The upset was caused by the sliding of the sleigh against the brick gutter. There was no proof that the gutter was

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improperly constructed or out of repair. The grade of Allison avenue has been as it was at the time of the accident for eighteen years and is at a very much traveled point. It cannot be expected that a street running along a side hill intersected by a street coming down the hill at right angles will not be at times smooth and slippery by reason of the constant turning of vehicles around a corner so situated. If the gutter way is clear and the brick free from ice the slipping will stop suddenly unless caution is used in turning the corner slowly. Urquhart v. The City of Ogdensburg, 91 N. Y., 67 .

The defendant’s trustees were not shown to have omitted any rule of prudence by which the accident could have been prevented.

The judgment and order denying new trial should be affirmed., with costs.

Dykman and Pratt, JJ., concur.