Stratton v. City of New York , 103 N.Y.S. 358 ( 1907 )

Gaynor, J. (dissenting):

From the curb there was a concrete incline, six feet wide, down to the cross-walk. The curb was six inches high, and the concrete incline-extended out on the cross-walk eighteen inches, measured at its base. This was no obstruction, but a gradual and easy decline from curb to cross-walk. . It would be more fit to "call it a convenience than an obstruction. Ho prudent person on seeing it would consider- it a dangerous obstruction, and that is the test of liability. To call it such is a refinement that cannot be applied to the ordinary affairs of men. Moreover, the plaintiff did not slip on it; she says that her foot or ankle turned as she, stepped on it; and this because of the slight downward slope of" her foot. I do not see why it is reiterated that the slope was for a driveway ; there is no such evidence. Such declines at crossings are not at all unusual.

The judgment should be affirmed.

Jenks, J.,, concurred. - .

Judgment ’and order reversed and new trial granted, costs to abide the event.