Getzoff v. City of New York

Patterson, J. (dissenting):

The complaint in this action was dismissed at the close of the plaintiff’s proofs. The plaintiff was injured by a fall on the sidewalk in front of No. 16 Ludlow street, in the city of New York. She' showed that her foot caught in a hole in the sidewalk, and i; was claimed that the city was liable by reason of its negligence in allowing the sidewalk to remain in an unsafe and dangerous condition. It was shown that the defect had existed for six months. It was also shown that a flagstone in the sidewalk was split in fragments and that the plaintiff’s foot, as she was walking along, went into what she at one time states to have been a hole about a foot deep, and at another two or three inches deep, but other witnesses' say that it was from two to three inches in depth. One of the wiL nesses states that the stone was broken into pieces of twelve and six inches and the hole was between. The fracture of the flagstone was such that at One edge it was depressed, and the depression was large enough for a person’s foot to be caught therein. The plaintiff testifies that her foot was so caught, and that she fell prone and sustained injuries. She stubbed her foot against one of the projecting edges and it went into the hole. The complaint was dismissed on the ground .that the case of Beltz v. City of Yonkers (148 N. Y. 67) controlled.

The much-discussed Beliz case seems to.be generally regarded as *455authority for the proposition that in an action, such as this, against a municipality, the existence of a hole or depression of two and one-half inches in the sidewalk of a public street, no matter how long it has existed, is not evidence of negligence on the part of a municipality in allowing that condition to remain, unless it is shown that some accident has previously happened in consequence of that condition. In that case the fact was shown that, at the point of juncture of two flagstones in a sidewalk, the stones had become worn, so that a depression seven'inches long and at most about two and one-half inches in depth existed. It was held to be such an inconsiderable and slight defect that danger could not reasonably be anticipated from it, and that the city in not repairing it had not failed in any duty it owed to persons using the street. The general rule of liability applicable to actions of this kind is stated in that case as follows : “ When the defect is of such a character that reasonable and prudent men may reasonably differ as to whether an accident could or should have been reasonably anticipated from its existence or not, then the case is generally one for the jury; but when (as in that case) the defect is so slight that nó. careful or prudent man would reasonably anticipate any danger from its existence, but still an accident happens which could have been guarded against by the exercise of extraordinary care and foresight, the question of the defendant’s responsibility is one of law.”

There the question was regarded as one of law by the court, because .of the exceedingly slight character of the depression and the fact that, from all that appeared, the street had been tised in safety while in that condition by pedestrians for six years. The decision was merely .the application of a conceded rule of law to the particular facts of that case. It cannot be said that the facts in this case are identical with those in the Beltz case. Assuming that the depression caused by the fracture of the stone here was only three inches in depth, still we have the testimony that this depression was in length so great that a person’s entire foot would sink into it and be caught so 'as to precipitate a fall. It cannot be assumed, as a matter of law, that this aperture or gap in the street was so insignificant that all reasonable men would agree that it was not dangerous. To say the least, reasonable and prudent men might differ as to whether an accident such as happened to this plaintiff could or *456should have been anticipated from its existence. An 'examination of the appeal book in th& Belts case shows that the corners of two of the flagstones near the middle of the walk, were broken off forth e length of about seven inches- only, and. that the plaintiff’s witnesses claimed that the depression was two inches and those on the part of tlie defendant that it was-only an inch and a half, and a diagram of the depression showing it to he only an inch and a half was-produced on the trial by the defendant.

We think that the facts of the two cases are quité different and that the complaint should not have been dismissed only upon, the authority of the Belts case.

As that is the only matter involved on this appeal, we think the judgment should be reversed and a new trial ordered, with costs to appellant to abide event. ■

Rumsey, J., concurred.

Judgment and order affirmed, with costs.