O'Bryan v. City of Amsterdam — 81 N.Y. Sup. Ct. 136

Majority

p. 136

Jane E. O’Bryan, Appellant, v. City of Amsterdam, Respondent.

Headnote

A city is not liable for injuries sustained by tripping over a curbstone.

"Where the proof shows that the proximate cause of a person’s injury was occasioned by her stumbling or tripping over a curbstone, and not by a defect in the sidewalk of a city, as claimed in the complaint, such person has no cause of action against such city.

Appeal by the plaintiff, Jane E. O’Bryan, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Montgomery on the 11th day of May, 1893, upon the report of a referee dismissing the plaintiff’s complaint and for costs.

A. B. Flansburg, for the appellant.

E. J. Maxwell, for the respondent.

.The referee has found in this case that the plaintiff “ tripped or stubbed ” on the curbstone and “ did not stub or trip upon the stump of a tree,” nor because of any opening in the sidewalk, nor because of any elevations or depressions in the sidewalk where the stump was situated; in other words, that the proximate cause of the plaintiff’s injury was her stumbling or tripping over the curbstone, and not the defect in'the defendant’s sidewalk set forth in the complaint, and that being so, the plaintiff has no cause of action against the defendant.

p. 137

I have read over the testimony in the case and there is sufficient in the evidence to warrant the finding of fact by the referee. I can see no sufficient reason for reversing it.

Judgment should, therefore, be affirmed, with costs.

Mayi-iam, P. J., and Putnam, J., concurred.

Judgment affirmed, with costs.