The action was for damages to the plaintiff by a defect in a sidewalk. The testimony for the plaintiff of the defect is as follows:
The plaintiff testified that as she was walking with her husband after dark “ my foot caught under a flagging and threw me,” She did not examine" the defect then, but did. after she got well, but does not say what it was or describe it. She says on cross-examination that she could not get her foot out after she fell, her husband had to pull her foot out from under the flagging in order to lift her up, it was held fast there “ for several moments.” In her preliminary examination when she filed her claim against the city she says she went back and examined the defect the night of the accident. The testimony of another witness that the plaintiff was out in the street next day,, and called on an acquaintance, is not disputed. Her hurt *848was not great. A woman who lived opposite testified that she saw the accident from her side; that where the sections of the sidewalls met one side was “ some ” 2f or 3 inches higher than the other, and the edge broken off some here .and there; she could not tell what the material of the sidewalk was; “ I did not particularly look at it,” she says; her observation and estimate was made by looking from across the street, and “ by passing there several times ” — on which side is left to inference. The plaintiff’s husband testified that he went back and examined the defect next day; that one flag was “about” 2 inches higher than the other; “and there'was a couple of jagged edges where a person could put their foot under where the edge of one met the edge of the other; ” that the sidewalk was of concrete; that “ the judgment I have given to the cotirt and jury as to the difference in the point of elevation is a surmise from simply an inspection and examination with the eye.” No measurements were made by the plaintiff or any witness for her.
The evidence for the defendant was as follows :
A civil engineer was sent to examine the defect after the accident ; by his actual measurements one section at the joint ran from If to If'inches higher than the next section; at the edge small pieces were jagged or chipped off. Three other witnesses and two policemen who took no measurements testified that the rise was about 1 to If inches. No one mentions any hole.
The verdict was against the weight of evidence. That of the ' plaintiff and her husband of her foot being cast in a hole under the sidewalk for several minutes, so that he had to pull it out in" order to lift her up, is an obvious exaggeration. There is no evidence of such a hole. Even the husband’s, that the top of one flag was “ about” 2,inches higher than the next one (which he says is a surmise) is inconsistent with it; and the wife does not describe the defect at all. The statement of the husband that one could get his foot “under where the edge of one met the edge of the other” is a' mere conclusion and not evidence. The other witness for the plaintiff mentions no hole. The plaintiff could have had measurements taken by a competent and trustworthy person, but didnót. The evidence of the civil engineer who did make accurate measurements should outweigh allsurmises and loose testimony, if credible, andthere is no reason to say it is not. The evidence that one flag appeared to *849be “ about ” or “ some ” 2 or 2$ inches higher than the other is consistent with the accurate evidence that the elevation was 1-J or If inches, and cannot be permitted to outweigh it. Moreover, the photograph shows that there was no hole at all.,
A verdict should have been directed for the defendant at the close of the case. The evidence in its entirety showed that the defect was too slight to base a charge of negligence on against the city. (Butler v. Village of Oxford, 186 N. Y. 444). Ho rule of perfection can be applied to a municipal corporation any more than to any- one else. This world is not perfect and the affairs of men are not held to such a rule. There are many places in the streets where one may stub his toe which are not negligent defects, and on private property, also.
The judgment and order should be reversed.
Rich, J., concurred.