We think plaintiffs complaint-was improperly dismissed.. She. was seriously injured by a fall upon an obstruction at a crossing on the corner of Flatbush avenue and Dean street, in the borough of Brooklyn. It/appears that the gutter had been filled ^with concrete several years before the accident, as a convenience to enable an occupant of one of the stores fronting upon this crossing to draw his wagon • out of the street. The curb, at this point, was six inches high above the gutter; the construction extended from the top of the curb, arching a little and sloping, eighteen inches from the curb to the pavement of the street; it was six or seven feet long and had remained in that condition until the day of, the accident, except that its surface was worn smooth; the accident happened on a bright, clear day, and plaintiff might have seen it had she looked; it may be that she failed to exercise care and that she ought to have- avoided this place;. her evidence tends to show that as she placed her foot upon the smooth surface of this construction it slipped, causing her fall and injury. She was looking ahead into the street at the time, but we cannot say upon the evidence before us as matter of law that she was negligent in not observing the condition. - She had a right to assume that the crossing was in a reasonably safe condition, and the question • as to her negligence was in the first instance for the jury, providing there was evidence from' which-a finding of negligence on the part of defendant could be based. . ■ ' . •
Judge Dráy, in Turner v. City of Newburgh (109 N. Y. 301 305), says: “ Municipal governments oWe to the public the specific,, clear and legal duty of putting and maintaining the public highways. *889which are in their care, or under their management, in a good, safe and secure condition, and any default in making them safe and secure, or in so maintaining them, if occurring through the negligence of the officials, upon whom a duty is devolved by law, will ■ render, the city liable. Where the unsafe condition occurs through some other agency or instrumentality, negligence is not imputable until a sufficient time has elapsed to charge the city officials with notice.” This obstruction had been there for over six years; there is no evidence that it was placed there by the city; it does appear, however, that other persons had fallen there, and sufficient time had elapsed to charge the officials of the city with notice of the condition. As to whether it was a dangerous obstruction, and whether the defendant was negligent in permitting it to remain in that condition, were questions of fact that ought, in the view, we take of the other question in the case, to have been submitted to the jury.
The judgment and order should be reversed and a new trial granted, costs to abide the event.
Hooker, J., concurred; Miller, J., concurred in separate opinion; G-aynor, J., read for affirmance, with whom Jenks, J., concurred.