Keener v. Tilton

The depression into which the plaintiff stepped was in a portion of the street paved with bricks. It was a few feet south of a crosswalk at a point where a street car would ordinarily be expected to stop in order to let off passengers. The depression, according to the plaintiff's witnesses, was the "length of a brick and the width of a brick" and it appeared to these witnesses as if the surface of one brick in the pavement was an inch and a half or two inches below the surface of the other bricks. Stepping into that depression, the plaintiff fell, and for the injuries suffered in her fall, the street railway company has been held liable.

The duty to keep the street safe rests upon the city, but as Judge LOUGHRAN states in his opinion, "a hole in a street must be pretty deep before a pedestrian injured thereby can hold the municipality to payment of his damages. (Lalor v. City of NewYork, 208 N.Y. 431.)" Freedom of the city from liability for damages caused to a pedestrian by a fall in a depression of less depth is not, I think, based upon any "residual government immunity" from liability for failure by the city to exercise reasonable care in the performance of its duty to keep the streets safe for those who use them, but rather on the ground that depressions in a sidewalk or crosswalk of a street, which are not "pretty deep," create no danger to a pedestrian so serious that the city in the exercise of reasonable care might have anticipated and should have guarded against the hazard. (Cf.Beltz v. City of Yonkers, 148 N.Y. 67, and other cases cited by this court in Lalor v. City of New York, supra.) Since the defendant railway company is under no duty to keep the streets near its tracks in repair, liability for the plaintiff's fall cannot be predicated upon the condition of the street. The defendant's duty to the plaintiff was only to exercise "ordinary care in furnishing a safe place to passengers to enter upon or alight from its cars." (MacKenzie v. Union Ry. Co., 82 App. Div. 124,129; affd., 178 N.Y. 638.) Its duty to its passengers is different from the duty which the city owes to pedestrians, but the measure of the duty of each is "reasonable care and it is liable only for neglect to perform this duty." (Beltz v. City of Yonkers,supra, p. 70.) The rule which requires carriers and municipal corporations alike to discharge their respective duties "with all due caution and forethought" is not subject to any arbitrary exception made by the courts in favor of either, nor can the responsibility of a carrier for failure to exercise due caution and forethought in the performance of the duty imposed upon it by law be enlarged or restricted by the care or lack of care of the city in the performance of its duties.

The depth of the hole and the consequent danger which a reasonable man might apprehend is, nevertheless, an important if not decisive factor in determining both whether the city, in failing to repair the hole, has been guilty of want of "due caution and foresight" in the performance of its duty to keep the streets of the city in safe condition, and whether the carrier in stopping its car near the hole has been guilty of want of "due caution and forethought" in the performance of its duty to provide a safe place for passengers to alight. Here, no failure by the carrier to use due care has been shown unless it can be said that the employees of the company not only should have discovered the depression in this street, which had existed for a month, but should have realized that such depression made a usual stopping place of cars unsafe for alighting passengers, although the depression was so slight that the city was not under any duty to repair it. In measuring reasonable care, practical standards must be used, and it seems to me that there can be no finding of want of care under the circumstances of this case except by application of a standard almost fantastic in its disregard of realistic and practical considerations.

The judgment of the Appellate Division should be affirmed.

FINCH, RIPPEY and CONWAY, JJ., concur with LOUGHRAN, J.; LEHMAN, Ch. J., dissents in opinion; SEARS and LEWIS, JJ., taking no part.

Judgments reversed, etc.