Lehn v. City of Brooklyn — 46 N.Y. St. Rep. 548

Majority

p. 548

Matthias Lehn, Resp’t, v. The City of Brooklyn, App’lt.

(City Court of Brooklyn, General Term,

Filed June 27, 1892.)

Headnote

Municipal coepobations—Negligence—Defective sidewalks.

A municipal corporation which permits a plank walk which has been, used by the public for eight years to become out of repair and in a condition liable to injure a foot traveler is responsible, where it had notice of the defects, for injuries caused thereby, although such walk was not laid, down by the corporation.

Appeal from judgment in favor of plaintiff, entered - upon verdict and from order denying motion for a new trial.

Action for negligence. The plaintiff sued for damages for personal injuries caused by a fall in a street.

The plaintiff lived in Fifth avenue within a few doors of Sixth street.

The sidewalk of Sixth street from Fifth to Sixth avenues was flagged with blue stone for about eighty-five feet; commencing at-Fifth avenue, there were some vacant lots for about 120 feet, in front of which the sidewalk had never been flagged. Some of the property owners in the neighborhood had put down planks as a sort of continuation of the flagged sidewalk. The planks were laid on the ground, were about an inch and a quarter thick, and. they had here and there rotted off at the ends, but they had not. worn off over an inch and a half from the dead level. On the-evening of November 4th, about eight o’clock, there was a bonfire in that neighborhood, and the plaintiff missed his truck, which had stood in front of his door. He rushed out of the house hat-less, in search of his wagon. He hurried around the corner into-Sixth street, and in passing along Sixth street over the planks of the walk he fell and was injured. There were no eye witnesses, of the accident. The learned judge summarized his account as

p. 549

follows : “ At a certain point he stepped where two boards, as I understand it, came together, and his foot broke through, going into a hole below the boards.”

Klein & Rendich, for resp’t; Almet F. Jenks, for appl’t.

The verdict of the jury in this case is conclusive that the defendant negligently permitted and allowed a plank walk to remain on the sidewalk of Sixth street in this city, after the same was decayed and in a dangerous condition; that the plaintiff, while using the walk and exercising ordinary care, stepped where the boards came together, and broke through into a hole; that the defendant had ample notice of its dangerous condition, and had neglected to repair or remove the same, and that the plaintiff sustained severe injuries as the result of his fall.

On such a state of facts, the municipality is clearly liable within the authorities. Clemence v. City of Auburn, 66 N. Y., 334 ; Higgins v. Village of Glens Falls, 33 St. Rep., Ill; affirmed in court of appeals, 124 N. Y., 666 ; 37 St. Rep., 964 ; Saulsbury v. Ithaca, 94 N. Y., 27 , 30. The defendant is responsible, because it permitted a plank walk which had been used by the public for eight years to become out of repair and in a condition liable to injure a foot traveller on the street, bfo question arises herein of a failure of the corporation to exercise its discretionary or quasi judicial powers, and the request to charge, based upon the case of Harrigan v. Brooklyn, 42 St. Rep., 625 , was properly refused. The duty of the city was as absolute to prevent an accident on the plank walk as upon a sidewalk which had been flagged by the defendant. The liability was by reason of a dangerous trap in the traveled way, and it was the ministerial duty of the city to abate it after notice.

The exemption clause in the charter does not apply to this case, for the reasons set forth in the case of Bieling, 120 N. Y., 98 ; 30 St. Rep., 811 , and the judgment and order denying new trial must be affirmed, with costs.

Osborne, J., concurs.