Diamond v. City of Brooklyn — 71 N.Y. St. Rep. 112

Majority

p. 112

Patrick Diamond, Resp’t, v. City of Brooklyn, App’lt.

(Supreme Court, General Term, Second Department,

Filed December 2, 1895.)

Headnote

1. Municipal corporations—Negligence.

The fact that a hole in a cross walk, about two feet long, nine inches wide, and eight or nine inches deep, has existed for a year or more, shows negligence on the part of the city.

2. Same—Contributory.

In this class of cases, the plaintiff is bound to show by a preponderance of evidence not only the negligence of the defendant, but also his own freedom therefrom as a contribution to the result.

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

Albert G. McDonald, for app’lt;

Mirabeau D. Towns, for resp’t.

This is an appeal from a judgment entered upon the verdict of a jury, and from an order denying the defendant’s motion for a new trial on the minutes of the court. The action is based upon negligence, and the facts are these: On the 12th day of April, 1893, the plaintiff was riding on a truck along Flat-bush avenue, in the city of Brooklyn. At the corner of Deane street the driver of the truck slackened its speed to almost a standstill, to allow the plaintiff to alight. The plaintiff stepped down upon the ground,' on his right foot, at the same time holding on the. rung of the truck with his right hand. .He had reached the ground, and, turning around, he stepped into a hole in the cross walk with his left foot, causing him to fall down and break his leg. The hole was about two feet long, nine inches wide, and eight or nine inches deep, and had been there for a year or more. As a result of these injuries, the plaintiff was confined to

p. 113

the hospital and to his house, and was unable to engage in his work, for a period of about four months. The injury to his leg had the effect to shorten it an indi or more, making it weak, and rendering him unable to earn the same wages that he did before he received the injury. In this class of cases, the plaintiff is bound to show by a preponderance of evidence the negligence of the "defendant, and his own freedom therefrom as a contribution to the.result. The plaintiff sustained the burden which the law cast upon him in this case, and the charge of the trial judge submitted the question involved to the jury. The verdict in favor of the plaintiff under the charge establishes the fact in favor of the plaintiff, and the record presents no error of law.

The judgment and order denying the motion for a new trial should be affirmed, with costs.

All concur.