Goodfellow v. . Mayor, Etc., of City of N.Y.

The nonsuit was not granted on the ground that the evidence failed to show that the crosswalk, on which the plaintiff fell, was in a dangerous condition. The trial judge held that the facts of the accident having happened, and of the crosswalk being in a dangerous condition, were not sufficient to render the city liable; that notice of the dangerous condition of the walk and the omission of reasonable care to repair it were essential, and the nonsuit was placed upon the ground that the city had passed an ordinance requiring the policemen on duty to inspect crosswalks; that such inspection had been made, embracing the particular crosswalk in question, and the policemen testified that they observed nothing dangerous and reported nothing to the city. From these facts the learned court drew two conclusions: First, that the city did not have notice of the dangerous condition of the crosswalk; and, secondly, that it took all the care corporations could take, by instructing its subordinates to ascertain what the facts were and report.

We cannot accede to this view of the law. The displacement of the stone on which the plaintiff fell had continued such a length of time that notice of the defect-might, on that ground, have been imputed to the defendant, but its subordinates, charged with the duty of inspection, also had actual notice of the defect, and their failure to report cannot shield the city. Neither is their opinion that the defect did not render the crosswalk dangerous any defense against the charge of negligence in not repairing it, if it was in fact dangerous. That was a question to be determined by the jury and not by the opinion of the policemen, and their failure to observe its dangerous condition, if in fact it existed and was apparent, is not a defense to the city. Neither can we accede to the doctrine that the city performs its whole duty in respect to keeping the streets in safe condition for travel by instructing its subordinates to ascertain the facts and report.

On the argument in this court the counsel for the city endeavored to sustain the nonsuit on the ground that the displacement of the stone was so slight that the jury would not have been warranted in finding as matter of fact that it rendered the crosswalk unsafe, and a verdict to that effect could not have stood.

On this point there is a serious conflict in the evidence. The displaced stone was five feet long by two feet wide. The regular grade of the crosswalk was such that there was a rise of seven inches in the center. The length of the walk being thirty feet, this grade caused a fall on each side of seven inches in fifteen feet, or about half an inch to the foot. According to the testimony on the part of the defendant, this stone sloped toward the south two and eight-tenth inches on the westerly side and four and one-half inches on the easterly side, from the highest point. But according to the testimony on the part of the plaintiff the depression of the stone below the level was eight inches at the south-east corner and five inches at the south-west corner, the north-west corner being on the level. Whether these irregularities were sufficient to render the walk unsafe, and call for repairs, was not a question of law which the court below undertook to decide, nor which we will now undertake to decide. There may be cases of irregularity in the pavements of streets so slight that the court would be justified in holding that it was not negligence on the part of the city to omit to repair them, or that the evidence of negligence was too slight to submit to a jury. But, taking the testimony on the part of the plaintiff, we cannot so hold in the present case. In Clemence v. Auburn (66 N.Y. 334) there was a depression of six inches in three and one-half feet in a stone in the sidewalk, upon which the plaintiff slipped and fell. This court (p. 342) held that whether this rendered the walk unsafe was, upon the evidence, a proper question for the jury. The depression in the present case was, on the plaintiff's testimony, eight inches in one corner of a stone five feet by two, and the circumstances were not precisely similar. A slope which is regular and in accord with that of the adjoining pavement may be much safer than one which is accidental or irregular and the result of want of repair. In such cases the question cannot be determined by nice calculations, and the question of negligence should be determined as one of fact in view of all the circumstances.

The judgment should be reversed and a new trial ordered, costs to abide the event.

All concur.

Judgment reversed.