Hamilton v. . City of Buffalo , 173 N.Y. 72 ( 1903 )

This action was brought to recover damages for injuries sustained by the plaintiff in falling upon a crosswalk in the city of Buffalo. At about half-past 10 o'clock in the forenoon of the 26th day of February, 1898, the plaintiff was walking along Erie street upon the crosswalk over the Terrace to his place of business at the corner of Erie street and the Terrace. When he arrived within six or seven feet of the curb or gutter along the westerly side of the Terrace he stepped upon the edge of a hole or depression in the pavement; his foot slipped in, his ankle turned and he fell upon it, causing the injury for which this action was brought. There had been a slight fall of snow and the crosswalk was slippery. The Terrace was a street paved with Medina sandstone and the crosswalk consisted of two or three tiers of flagging stone laid in the pavement across the street nearly upon a level with the pavement. The hole or depression appears to have been formed by the wheels of heavily laden trucks which had worn off the corners of two of the flagstones where they came together, causing a rounded depression in the flagstones extending into the first tier of flagging for a distance of eight or nine inches and then extended back into the pavement, making the depression thirty-four inches long, about twelve inches wide and in the form of a V. It was about four inches deep. This condition of the flagstones forming the crossing, and of the pavement abutting, had existed for a period of from six to twelve months. The plaintiff's place of business was upon the corner of these streets, but forty or fifty feet distant from the place of the accident. The plaintiff, at the time of the accident, was walking at an ordinary gait, thinking of his business, and did not notice the hole before his foot slipped into it. He had been, however, in the habit of passing over this crosswalk four or five times each day; had often noticed the depression, but testified "that this hole made no particular impression upon my mind; not any more than any other holes." At the conclusion of the plaintiff's evidence the trial court, upon the application of the city attorney, ordered a nonsuit, and the question presented for determination is as to whether the evidence of the plaintiff was sufficient to carry the question to the jury.

We are of the opinion that the nonsuit was proper. There was a depression in the pavement, and the corners of the two flagstones had been worn into by the wheels of heavy trucks, but the depression or hole, as it has been called, was so slight as not to suggest to the mind of an ordinarily careful and prudent man that it was dangerous. The authorities of a city are not required to keep the streets in an absolutely perfect condition, for this would be practically impossible. All kinds of pavements that have heretofore been discovered and used are subject to wear and some displacements when used by heavily laden vehicles, and this cannot be prevented. It is the duty of the municipality to remedy defects within a reasonable time, which an ordinarily prudent man would regard as dangerous. The law imposes upon the municipality the duty of guarding against such dangers as can or ought to be anticipated or foreseen in the exercise of reasonable prudence and care, but when an accident happens by reason of some slight defect from which danger was not reasonably to be anticipated as likely to happen, it is not chargeable with negligence. As bearing upon the character of the defect, the plaintiff's own testimony is important. As we have seen, his place of business was within a few feet of the defect in the street. He was perfectly familiar with the condition of the place, having seen it several times a day as he passed to and from his place of business. He, as much as any other person in the city, was interested in having the street in front of his own premises kept in safe condition, and yet it does not appear that he ever made complaint to any city official or any other person of this defect. Indeed, he testified, as we have seen, that "it made no particular impression on my mind." Evidently it did not occur to him that it was dangerous, or that accidents were reasonably to be anticipated by its existence.

It appears to us that the case of Beltz v. City of Yonkers (148 N.Y. 67) is conclusive upon the question raised in this case. In that case the hole was in the center of a sidewalk instead of a crosswalk, but ordinarily a person exercises more vigilance upon a crosswalk over a street than he does upon a sidewalk where he is not called upon to watch for teams or passing vehicles. The hole in that case was occasioned by the breaking of the stone flagging, leaving a hole two and one-half inches deep and of about the same size of that in the case under consideration. The plaintiff in that case stepped into the hole and fell. In this case the plaintiff stepped upon the edge of the depression and his foot slipped in, causing him to fall. The hole in this case was a trifle deeper, but its additional depth did not affect his stepping upon the edge of the depression and slipping into it. (See, also, Hubbell v. City of Yonkers,104 N.Y. 434.)

The order of the Appellate Division should be reversed and the judgment of the trial court affirmed, with costs.