Harrigan v. City of Brooklyn — 51 N.Y. St. Rep. 408

Majority

p. 408

William Harrigan, App’lt, v. The City of Brooklyn, Resp’t.

(Supreme Court, General Term, Second Department,

Filed February 13, 1893.)

Headnote

Municipal Corporations — Negligence—Opening in curbstone.

Plaintiff, in avoiding a puddle of water, came to the sidewalk at a point

p. 409

away from any crossing, when his foot went into a V-shayed opening in the curb, and he fell and broke his leg. It appeared that such opening had been left to drain the water "from the street into a lot. Held, that this was a prudent exercise of the power of the city to make its streets and walks dry for the use of the public, and that defendant was not liable for the injury.

Appeal from judgment dismissing the complaint.

Action to recover for injuries sustained by plaintiff by falling-on an alleged defective curbstone in a public highway of the defendant.

James C. Church, for app’lt; Almet F Jenks (William T. Gilbert, of counsel), for resp’t.

Hicks street is one of the public streets in the city of Brooklyn. The street was graded and paved by the-city, including the sidewalks, in 1860. The street was paved with cobble stones, and there was a good, unflagged sidewalk two- or three inches below the top of the curbstone level. On the 21st of July, 1888, about twelve o'clock at night, the plaintiff crossed Hicks street on the crosswalk, until he discovered a puddle of water, and he stepped aside some three feet to avoid the water. When he reached the sidewalk he put his foot upon the curbstone and there was an open space there some four inches at the top and slanted down wide shape V, where the curbs had not. come together. The plaintiff put his foot in the V-shaped opening in the curb line, fell and broke his leg. The opening in the stone was not at the termination of the crosswalk, and had been made to carry the water from the street, which otherwise lay stagnant there, into the lot that carried the water away. There was no proof of negligence upon the part of the city. The case does not resemble Clemence v. City of Auburn, 66 N. Y., 334 . In that case a sidewalk was constructed on two grades. They were connected by a slat board at a slope of six inches in about three and a half feet. The result was: a person was injured by'stepping in the incline covered by alight snow. Neither is it like the case of Goodfellow v. The Mayor, 100 N. Y., 15 . There a crosswalk was supposed to continue where a stone in it had one corner on a level with the grade and the opposite corner eight inches below the level. The court held this case proper to- go to the jury. The present case does not refer either to sidewalk or crosswalk. It was failure to bring the top of the curbs close and for a good reason. It was the duty of the city to free the street and walks-from water, and this small aperture in the curb line four inches-wide and some three inches deep, and not on the sidewalk and not on the crosswalk, but detached some feet therefrom, was a prudent exercise of the power of the city to make its streets and walks dry for the use of the public.

The nonsuit was, therefore, right, and the judgment should be affirmed, with costs.

Dvkman and Pratt. JJ., concur.