Sullivan v. C. W. Blakeslee & Sons, Inc.

DICKENSON, J.

The plaintiff, while attempting to catch a bus, stepped from a curb in a city street upon a stone and turned and broke his ankle. His claim is the stone was left in the street with others by the defendant after filling in a trench it had excavated. The defendant denies the allegations of the complaint and alleges the plaintiff himself was negligent.

Photographs in exhibit were taken shortly after the accident on the same day and have been identified by witnesses as disclosing a condition similar to that which existed at or about the time of the accident. While these show no “cobblestones or rocks”, as is alleged in the complaint, plaintiff’s witnesses have testified to large stones and stones ranging .from pebbles to stones three inches in diameter in the street. The plaintiff himself testified the stone that caused his fall was about four and one-half inches in diameter. That these stones came from the excavation can hardly be disputed.

In a country road such a condition might be expected, but upon a hard-surfaced city street it would ordinarily not be anticipated and might well be dangerous to city pedestrians, as it was in fact to the plaintiff.

The defendant claims, however, that even if this were so, the plaintiff admittedly was familiar with the condition and failed to use reasonable care in view of his knowledge.- As to this, the plaintiff claims the stone was near the curb, and he was excused from not seeing it.

It would seem to be holding him to too high a degree of care to require him to watch every step that was taken as he went to board the bus, and the location of the stone was where the ordinary prudent man might well have overlooked it.

It is found the defendant is liable, and judgment is directed for the plaintiff to recover $1,200 damages of the defendant.