Adelska v. City of Troy , 41 N.Y.S.2d 449 ( 1943 )

Bliss, J.

The plaintiff-wife was injured on May 17,1939, while walking westerly along the northerly side of Fourth street across Broadway in the city of Troy. Her notice to the city of intention to sue stated that she caught her foot under the westerly rail of the easterly set of car tracks when she stepped into a depression in the pavement which was about four inches to six inches deep. She testified that her foot caught right under this rail and it threw her on her face. A photograph in evidence of the scene of the accident shows that the rough granite, block pavement between the abandoned rails of the easterly set of car tracks was depressed a considerable distance below the level of the westerly rail. At this point there was also an iron grating between the rails to carry off surface water and the pavement is pitched toward this grating. The photograph shows that the westerly rail is elevated above this rough pavement a matter of several inches, at least three or four, and there is a space underneath the easterly edge of this westerly rail. This was not merely a depression in the pavement at the point of the crosswalk, but a portion of the rail overhung the pavement between the rails, so that the toe of a person’s shoe would very easily catch underneath the rail, between the rail and the pavement. A jury might very properly say that this crossing was not reasonably safe for pedestrians who were compelled to watch for vehicles and could not give their constant attention to the surface of the pavement. There was proof that other people had fallen at this spot.

In Wilson v. Jaybro Realty & Development Co. (289 N. Y. 410) the Court of Appeals states: “ There was evidence that the opening was £ a sort of jagged hole ’ which £ varied on a sort of slant. ’ There was evidence that the opening had increased in size over a long period of time. We think it was for a jury to say whether such a defect unreasonably imperilled the safety of the female plaintiff on the occasion in question. There is no rule that a hole in a public thoroughfare must under all circumstances be of a particular depth before its existence can give rise to a legal liability. (See Hamer v. Village of Whitesboro, 287 N. Y. 816. Cf. Keener v. Tilton, 283 N. Y. 454.) ”

The notice of intention was adequate and it was error to dismiss this complaint by way of nonsuit. Those cases in which the plaintiff depended solely upon the depth of the depression as proof of a dangerous condition, do not apply. Under the facts in this case the jury might properly have paid that this crosswalk was not reasonably safe for pedestrians and that the plaintiff was entitled to recover.

It is also our view that the plaintiff was unduly restricted as to the reception of evidence in rebuttal.

The judgments and orders should be reversed on the law and facts, with costs to the appellants to abide the event, and a new trial granted.