p. 147Matilda Wienke, Resp’t, v. The Village of North Tonawanda, App’lt.(Supreme Court, General Term, Fifth Department,Headnote
Villages—Negligence—Unprotected sidewalks.Plaintiff, while walking in a portion of one of defendant’s streets which was not well lighted, was obliged to turn out for some men, and fell from the inside edge of the sidewalk a distance of over five feet, and was injured. There was no railing or fence to protect the inner edge of the walk. Plaintiff was a stranger in the locality and had not noticed the elevation of the walk above the adjoining lot. Held, that the questions of defendant’s negligence in leaving the walk unprotected and of the absence of negligence on plaintiff's part were properly submitted to the jury.
Appeal from a judgment in favor of the plaintiff entered on the verdict of a jury at the Niagara circuit and from an order denying defendant’s motion for a new trial on the minutes of the court.
E. M. Ashley, for app’lt; W. B. Simpson, for resp’t.
The action was for a bodily injury sustained by the plaintiff by reason of a fall from a sidewalk on one of the streets of the defendant. The defect complained of was the absence of a railing on the inside of the walk where the foot way was elevated five feet and an inch above the surface of the ground.
The plaintiff, a German woman of thirty years of age, was passing along the walk in the evening ; the nearest street lamp was more than ninety feet distant, and there was no light from any building which illuminated the inner edge of the walk; she met at that point several men walking abreast or in a bunch, and she turned toward the inside of the walk to avoid them, when she fell off the unprotected edge, down a distance of five feet and upwards, and sustained the injury complained of.
The question of the negligence of the village authorities in leaving this elevated walk unprotected by a railing was properly submitted to the jury. Ivory v. Town of Deerpark, 116 N. Y., 476 ; 27 St. Rep., 643 ; Maxim, v. Town of Champion, 23 id., 949; Reid v. Town of Ripley, 37 id., 590.
p. 148' These cases, and many more of like effect, affirm the duty of highway commissioners to exercise due care to guard exposed and dangerous points at the boundary of the highway by railings- or other structures. Of course the same principle applies to the-trustees of villages, though it is comparatively seldom that a situation occurs on the streets of a populous village which requires, this kind of protection for the safety of foot passengers. The situation in this case seems to have been very suggestive of such, precaution. Just on the'line of the fronts of stores and shops, on. a much frequented street, the inner edge of the sidewalk was more' than five feet above the surface of the vacant lot in front of which it was constructed, and there was no indication, whatever, to pass'ers in the night, of this dangerous condition. It is true the sidewalk was of the unusual width of seventeen or eighteen feet; but this gave no protection to persons walking,' as all had a right to» do, and as some at times must do, on the inside of the walk. The;plaintiff had only just before come out of one of the shops in the-immediate vicinity, and it was natural that she should proceed on a line near the fronts of the buildings. She was comparatively a stranger to the locality, had never noticed the elevation of the-walk above the adjoining lot at this point; she turned still more-towards the inside to avoid a row or knot of men coming from the opposite direction, and the accident was the result. It does-not seem to us a matter of surprise that it should have happened, but rather that similar accidents had not previously occurred at the same point under similar circumstances. Plainly it was for' the jury to pass upon both the main questions in this case, viz.: of ■ negligence on the part of the village authorities, and of the absence"of negligence on the part of the plaintiff. Those questions were submitted to the jury in a charge of eminent fairness to the defendant, and the verdict cannot be disturbed.
We find no exception taken on the trial which requires discussion.
The judgment and order denying the motion for a new trial must be affirmed.
Judgment and order appealed from affirmed.
Macomber, J., concurs; Lewis, J., not sitting.