Fitzgerald v. Degnon Contracting Co.

126 A.D. 363, 110 N.Y.S. 857, 1908 N.Y. App. Div. LEXIS 3354

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 8, 1908
• Status: Published

Opinion

Gaynor, J.:

The tunnel recently built under the East River from the borough of Queens to the borough of Manhattan ran under Fourth street, in the former borough. The defendant was restoring the surface of the street after the tunnel was completed. The street was dug up and littered. Teams had to go on the sidewalk on account of the broken and littered condition of the roadway. The defendant was engaged under contract with the tunnel company in restoring the street. It was taking up the flag sidewalk and relaying it. The plaintiff came along where the workmen had taken a flag up and were putting down a foundation of cinders under it to relay it. She walked from the adjoining flag into the depression caused by the temporary removal of the flag and fell. It was in the daytime. • Judgment should have been given for the defendant. The condition of the street was obvious, and it was for her to take care (Whalen v. Citizens' Gas Light Co., 151 N. Y. 70; Walsh v. Central N. Y. Tel. & Tel. Co., 176 id. 163). The defendants were engaged in a necessary and lawful work and were guilty of no negligence.

The judgment should be reversed.

Jenks, Hookeb, Rich and Miller, JJ., concurred.

Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.