Stratton v. . City of New York

83 N.E. 40, 190 N.Y. 294, 28 Bedell 294, 1907 N.Y. LEXIS 1380

• Court: New York Court of Appeals
• Decided: December 20, 1907
• Status: Published

Opinion

Hiscock, J.

While plaintiff was attempting to cross Dean street, near the corner of Platbush avenue, in the borough of Brooklyn, in daylight, she slipped on an alleged obstruction in the gutter of Dean street, which she claims had been so negligently allowed to remain there for a long time by the city that the latter is responsible for her injuries. This alleged obstruction consisted of a concrete construction about five or six feet long, sloping from the top of the curb to the pavement, the sloping surface being about eighteen inches wide and the greatest perpendicular height being about six inches. It was located at a point where a pedestrian would naturally cross and had been there about six years. The plaintiff was traveling from the sidewalk towards the pavement and testified that she did not see it before stepping upon it and slipping. There was no evidence of prior accidents except that one witness in ascending from the pavement to the sidewalk had slipped a couple of times when the concrete was covered with snow or ice, and another witness going in the same direction upon oiie occasion had stumbled against it.

In the recent case of Butler v. Village of Oxford (186 N. Y. 444) this court formulated the general principles which govern the liability of a municipality with respect to such an accident as this in the following rule: “ It is not an insurer and is not expected to maintain walks and streets in such an absolutely perfect condition as to render an accident impossible, but is expected to use reasonable care and prudence in detecting and remedying any defect which it might be fairly anticipated would be dangerous and liable to cause an accident,” and in that case we decided that the defendant might not be held liable for injuries received by a traveler in the night time who had stumbled against the edge of a stone sidewalk which abruptly projected above an adjoining dirt sidewalk by a distance which varied from about two and a half inches in the center to about five inches at the edge of the walk.

We think that the principles involved in the decision of that case, when applied to the present one, lead us to hold that the appellant should not be made to respond for the mishap which the respondent has suffered.

In the first place it might be argued that the municipal authorities in the exercise of that judgment and discretion which is undoubtedly possessed by them in such matters were authorized to decide that the construction complained of, and which bridged the descent from the sidewalk to the pavement, would be a convenience and a help to travelers rather than an obstruction and a source of danger, and that the municipality would not be liable for an error of judgment in respect to the matter.

But aside from this consideration we do not think that it could be reasonably apprehended that the construction employed would be a menace to travelers, or that one using reasonable care would be more apt to slip aud fall upon it than lie would be to slip and fall in making the abrupt descent which otherwise would have been left between the sidewalk and the gutter.

The evidence aud lack of evidence upon the subject of prior accidents during the course of six years confirm this view. There is no evidence of such accidents except in cases which were fairly attributable to other causes than those naturally incident to the construction complained of.

The order of the Appellate Division should, therefore, be reversed, and the judgment upon, the nonsuit affirmed, with costs in both courts.

Cullen, Ch. J., O’Brien, IIaight, Vann and Chase, JJ., concur; Edward T. Bartlett, J., dissents.

Ordered accordingly.