Highland avenue, one of the streets in the city of Buffalo, extends in an easterly and westerly direction. Elmwood avenue, another of the streets of said city, extends in a northerly and southerly direction, crossing Highland avenue. At the time of the accident both of said streets were paved with asphalt, and there are granolithic walks on either side of both avenues or streets. The asphalt pavement in the street forms the walk across the street, there being no walk of a different character or material from the pavement itself. The International Bailway Company operated a double-track surface street railroad in Elmwood avenue, the cars going north being operated over the easterly tracks and the cars going south being operated over the westerly tracks in said avenue.
On the 22d day of January, 1909, the plaintiff was a passenger on one of the cars of the defendant International Bailway Company, being operated on Elmwood avenue, and, wishing to alight from said car at Highland avenue, signaled the person in charge of the car, and the car was brought to a stop at or near the northerly side of the north walk on Highland avenue, and the plaintiff alighted from the car in which she had been riding, and, in stepping from the car to the pavement in Ehnwood avenue, stepped into a depression in the street where the asphalt had been broken and worn away and sustained the injury for which she complains.
The great preponderance of the evidence is to the effect that the hole or depression into which the plaintiff stepped vras three feet seven inches long, extending east and west, and two feet four inches wide at the widest part, north and south; that the hole begins at the westerly edge, one foot seven and three-quarters inches away from the edge of the easterly rail of the easterly track. At the part of the hole nearest the railway track it is two and a quarter inches deep. One-half way across the hole on the *633northerly side it is one and three-quarters inches deep, and on the southerly side it is one and a half inches deep. At the easterly end it is one and a half inches deep. So that the deepest depression was two and a quarter inches, the bottom of which was practically level. It was filled with water and the sides of the depression sloped gradually. The accident occurred in the night.
It seems to me clear that under the authorities the finding of the jury that this depression or hole was of such character as to charge the defendants with negligence was clearly against the weight of the evidence. (Butler v. Village of Oxford, 186 N. Y. 444; Corson v. City of New York, 78 App. Div. 481; Hamilton v. City of Buffalo, 173 N. Y. 72; Miller v. City of Buffalo, 136 App. Div. 914; Getzoff v. City of New York, 51. id. 450 ; Powers v. City of New York, 121 id. 433 ; Gastel v. City of New York, 194 N. Y. 15.)
We conclude that under these authorities the finding of the jury that the depression was of such character as to charge the defendants, or either of them, with negligence, is contrary to the weight of the evidence.
We, therefore, conclude that upon that ground the judgment and order appealed from should be reversed and a new trial granted, with costs to appellants to abide the event.
All concurred, except Kruse, J., who dissented in a memorandum; Spring, J., not sitting.