Dynes v. Village of Waverly

2 A.D.2d 937, 156 N.Y.S.2d 421, 1956 N.Y. App. Div. LEXIS 3960

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 9, 1956
• Status: Published

Opinion

Appeals from judgments in favor. of plaintiffs, entered upon a verdict of the jury rendered at a Trial Term of the Supreme Court in Tioga County. Plaintiffs, husband and wife, lived on Clark Street in the Village of Waverly for over •20 years. Plaintiff wife was walking on Clark Street toward her home, on a dark summer night, the street lights not being lit because of power failure. When she reached a point in front of her next door neighbor’s residence, she fell on the sidewalk and sustained a fractured hip for which she was awarded $6,000. A verdict of $2,500 was returned in plaintiff husband’s cause of action for medical expenses and loss of services. At the point where plaintiff wife began to fall there was a depression in the sidewalk which was one and three-quarters to two inches deep, two feet across and about one foot in length. Nearby were other depressions which were approximately the same depth. There is evidence from which the jury could find that plaintiff wife twisted her ankle as she stepped in one of the depressions, that she started to fall but kept moving forward until she stubbed her toe on another of the depressions and fell. There is also evidence in the record that the depressions had existed in the sidewalk for several years, that a police officer of the village had been notified of the condition five years before the accident, and that the mayor of the village had been informed about this some months prior to the accident. In our view, the evidence in the record was sufficient to warrant submission of the case to the jury. (Loughran v. City of New York, 298 N. Y. 320.) We do not regard the verdicts as excessive. Judgments unanimously affirmed, with costs. Present — Foster, P. J., Bergan, Halpern, Zeller and Gibson, JJ.