Suchovalsky v. City of New York

130 N.Y.S. 112

Opinion

BIJUR, J.

This is an action to recover damages for personal injuries sustained by the plaintiff by falling into an excavation in one of the streets of the city of New York. On a previous appeal, this court reversed a judgment in favor of the plaintiff (126 N. Y. Supp. 699), on the ground that there was no evidence that the defendant had actual knowledge of the excavation, or that it existed for such a length of time as to justify the imputation of knowledge on which to predicate negligence for failure to properly guard the excavation.

It is unnecessary to determine whether the same reasons require a reversal on this appeal; for it appears on the plaintiff’s own testimony that he was guilty of contributory negligence. He testified that he did not notice where he was, and that he walked straight ahead, without looking where he was going. Plaintiff’s own witnesses admit that the street was in such bad condition that it was difficult to cross. A typical answer of the plaintiff was the following:

“It was a dark day, and I did not notice where I was.”

Judgment reversed, and new trial ordered, with costs to appellant to abide the event. All concur.