Fannie P. Stratton, Appellant, v. The City of New York, Respondent.
Second Department,
March 22, 1907.
Municipal corporation — negligence — injury to pedestrians on incline leading to crosswalk.
It is for the jury to say whether a municipality is liable for injuries received by a fall on an obstruction in a'city street built to enable an adjoining owner to draw wagons from the street, which consists Of an arched, sloping way, six or seven feet long, eighteen inches wide and six inches high, dropping from the curb to the crosswalk, which has been maintained for five years, and upon which other pedestrians have fallen.
A pedestrian who slips upon such obstruction in the daylight is not guilty of contributory negligence as a matter of law. *
(Per Miller, J.): As the incline was intended for a driveway where none existed and where the sidewalk dropped to the crosswalk, it was for the jury to say whether a person of ordinary prudence would -have anticipated the accident which happened to the plaintiff.
Gaynor and Jenks, JJ., dissented, with opinion.
Appeal by the plaintiff, Fannie P. Stratton, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 30th day of April, 1906, upon the dismissal of the complaint by direction of the. court after *888.a trial at the Kings . County Trial Term, and also from an order bearing date the 26th day of April, 1906, and'entered in said clerk’s office, denying the plaintiffs motion for a new trial made upon the minutes;
Charles P. Cowles {Justus'A. B. Cowles with him on the brief], for the appellant.
James D. Bell [ William B. Ellison with him on.the brief], for the respondent.
Rich, J.:
We think plaintiffs complaint-was improperly dismissed.. She. was seriously injured by a fall upon an obstruction at a crossing on the corner of Flatbush avenue and Dean street, in the borough of Brooklyn. It/appears that the gutter had been filled ^with concrete several years before the accident, as a convenience to enable an occupant of one of the stores fronting upon this crossing to draw his wagon • out of the street. The curb, at this point, was six inches high above the gutter; the construction extended from the top of the curb, arching a little and sloping, eighteen inches from the curb to the pavement of the street; it was six or seven feet long and had remained in that condition until the day of, the accident, except that its surface was worn smooth; the accident happened on a bright, clear day, and plaintiff might have seen it had she looked; it may be that she failed to exercise care and that she ought to have- avoided this place;. her evidence tends to show that as she placed her foot upon the smooth surface of this construction it slipped, causing her fall and injury. She was looking ahead into the street at the time, but we cannot say upon the evidence before us as matter of law that she was negligent in not observing the condition. - She had a right to assume that the crossing was in a reasonably safe condition, and the question • as to her negligence was in the first instance for the jury, providing there was evidence from' which-a finding of negligence on the part of defendant could be based. . ' . •
Judge Dráy, in Turner v. City of Newburgh (109 N. Y. 301 305), says: “ Municipal governments oWe to the public the specific,, clear and legal duty of putting and maintaining the public highways. *889which are in their care, or under their management, in a good, safe and secure condition, and any default in making them safe and secure, or in so maintaining them, if occurring through the negligence of the officials, upon whom a duty is devolved by law, will render, the city liable. Where the unsafe condition occurs through some other agency or instrumentality, negligence is not imputable until a sufficient time has elapsed to charge the city officials with notice.” This obstruction had been there for over six years; there is no evidence that it was placed there by the city; it does appear, however, that other persons had fallen there, and sufficient time had elapsed to charge the officials of the city with notice of the condition. As to whether it was a dangerous obstruction, and whether the defendant was negligent in permitting it to remain in that condition, were questions of fact that ought, in the view, we take of the other question in the case, to have been submitted to the jury.
The judgment and order should be reversed and a new trial granted, costs to abide the event.
Hooker, J., concurred; Miller, J., concurred in separate opinion; G-aynor, J., read for affirmance, with whom Jenks, J., concurred.
Miller, J. (concurring):
I concur in the opinion of my brother Rich. The incline was intended for a driveway where none existed.. It was at the intersection of two streets, where the sidewalk dropped to the crosswalk. It was unusual, and there was nothing to warn pedestrians to look out for it. The plaintiff expected a perpendicular drop, as any one would; instead, her foot came in contact with the smooth, slippery, oval surface of the concrete and she fell. Of course, if she had ' been going in the other direction it would not have done any harm, but in the direction she was going she was not likely to see it, even had she been using unusual care. I fully agree with my brother G-aynor on the proposition that the same-rule must be applied to the defendant as to the ordinary affairs of men, and that of necessity there will be slight defects 'and irregularities in streets and sidewalks which it is not required to remove, but this rule does not permit the defendant to set traps for pedestrians, and I think that at *890least it was for the jury to-say whether a man of ordinary prudence would have anticipated what happened to the plaintiff.-
Gaynor, J. (dissenting):
From the curb there was a concrete incline, six feet wide, down to the cross-walk. The curb was six inches high, and the concrete incline-extended out on the cross-walk eighteen inches, measured at its base. This was no obstruction, but a gradual and easy decline from curb to cross-walk. . It would be more fit to "call it a convenience than an obstruction. Ho prudent person on seeing it would consider- it a dangerous obstruction, and that is the test of liability. To call it such is a refinement that cannot be applied to the ordinary affairs of men. Moreover, the plaintiff did not slip on it; she says that her foot or ankle turned as she, stepped on it; and this because of the slight downward slope of" her foot. I do not see why it is reiterated that the slope was for a driveway ; there is no such evidence. Such declines at crossings are not at all unusual.
The judgment should be affirmed.
Jenks, J.,, concurred. - .
Judgment ’and order reversed and new trial granted, costs to abide the event.