Harrigan v. City of Brooklyn

BARNARD, P. J.

Hicks street is one of the public streets in the citjr of Brooklyn. The street was graded and paved by the city, including the sidewalks, in 1860. The street was paved with cobblestones, and there was a good, unflagged sidewalk two or three inches below the top of the curbstone level. On the 21st of July, 1888, about 12 o’clock at night, the plaintiff crossed Hicks street on the cross walk, until he discovered a puddle of water, and he stepped aside some three feet to avoid the water. When he reached the sidewalk he put his foot upon the curbstone, and there was an open space there, some four inches at the top, and slanted down wide V-shape, where the curbs had not come together. The plaintiff put his foot in the V-shaped opening in the curb line, fell, and broke his leg. The opening in the stone was not at the termination of the cross walk, and had been made to carry the water from the street, which otherwise lay stagnant there, into the lot that carried the water away. There was no proof of negligence upon the part of the city. The case does not resemble Clemence v. City of Auburn, 66 N. Y. 334. In that case a sidewalk was constructed on two grades. They were connected by a slat board at a slope of six inches in about three and a half feet. The result was, a person was injured by stepping in the incline, covered by a light snow. Neither is it like the case of Goodfellow v. City of New York, 100 N. Y. 15, 2 N. E. Rep. 462. There a cross walk was supposed to continue where a stone in it had one comer on a level with the grade and the opposite comer eight inches below the level. The court held this case proper to go to the jury. The present case does not refer either to sidewalk or cross walk. It was failure to bring the top of the curbs close, and for a good reason. It was the duty of the city to free the street and walks from water, and this small aperture in the curb line, four inches wide and some three inches deep, and not on the sidewalk, and not on the cross walk, but detached some feet therefrom, was a prudent exercise of the power of the city to make its streets and walks dry for the use of the public. The nonsuit was therefore right, and the judgment should be affirmed, with costs. Ail concur.