Higgins v. Village of Glens Falls

Landon, J.

I advise an affirmance of the judgment. This was not less a sidewalk because it was naturally fitted for the purpose, and had been adopted by the public and used as such from time immemorial, instead of being an artificial one. Natural adaptation in great part made construction unnecessary. It was upon a public and much-used street, and was a section of a continuous sidewalk, of which the other portion had been constructed. It needed the removal of small irregularities upon its surface to make it reasonably safe. The village had the power and the means to do this, and, under • the circumstances, ought to have done it. Saulsbury v. Village of Ithaca, 94 N. Y. 27. The fact that the village did not lay the flag-stones does not excuse it. It clearly accepted and adopted the advantage of their natural adaptation to the purposes of the walk.

Respecting' the cause of the intestate’s fall, the evidence supports the verdict. It is reasonably clear that the intestate fell because of the irregularities in the surface of the natural flag-stone. We can speculate as to other causes, as, that he was careless, or that his infirm knee failed to support him. There can hardly be said to be any evidence tending to prove that he fell from either of these causes. If we are to indulge in speculation, we might possibly say that he first died and then fell. But if there was any evidence tending to suggest any other cause than the defects in the walk, the jury passed upon it. Proof to an absolute certainty of the cause of his fall is not necessary. If the evidence fairly tends to show that the intestate fell because of the defects in the sidewalk, and also tends to show a possibility that he fell from other causes, then the casei is for the jury. The question is whether the one cause has more support tlian any other in the evidence. It is only in those cases in which the evidence plainly points as much to an adequate cause for which the defendant is not liable, as to a cause for which the defendant is liable, that the court can say, notwithstanding the verdict, that the case is not proved, and that the verdict should be set aside. Here, there is evidence that the intestate, was walking upon this dangerous sidewalk when he slipped or stumbled, and fell, though the witness could not give the precise cause of his falling. Thus it was shown that the intestate, being amid dangers likely to trip him, was tripped. Shall we attribute his fall to the danger known to be present, or to a possible danger not known to be present? The jury answered this question. Judgment affirmed, with costs.

Learned, P. J.

With some doubt as to the liability of the village to keep the place in good condition where the accident happened, as my associates agree as to such liability, I concur in within opinion.