North v. South Brooklyn Railway Co.

248 A.D. 743

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 15, 1936
• Status: Published

Opinion

A sewer, recently laid in Avenue X, Brooklyn, ran through and under Gravesend avenue. Plaintiff Alice C. North, descending from the elevated railway station on the easterly side of Gravesend avenue, found it impossible to cross Avenue X at the street crossing because of a barricade that had been erected. The easterly surface track on Gravesend avenue had been filled in. On the advice of some men who were filling in the westerly track, she proceeded to walk along the easterly track, stepping on planks and dirt. When about halfway across, she sank in the dirt and was injured. She and her husband brought an action against the railway company, the basis of their claim being that defendant was negligent in that it failed in its duty to restore the surface between the tracks and to maintain it in a safe condition. From the judgment entered in their favor the defendant appeals. Judgment reversed on the law and the facts and a new trial granted, with costs to appellant to abide the event. It was not adequately demonstrated that, in view of the laying of the sewer by the city of New York, the situation was such that the defendant at the time of the accident was called upon to meet its responsibility under section 178 of the Railroad Law. Lazansky, P. J., Young, Hagarty, Johnston and Adel, JJ., concur.