Bennett v. Village of Sing Sing

Dykman, J.

This action was commenced and tried in the county court, and the appeal is from a judgment entered upon a verdict in favor of the plaintiff, and from an order denying a motion for a new trial on the minutes of the court. The action is for the recovery of damages resulting from injuries sustained by the plaintiff by a fall, and the material facts are these: North Malcolm street is a public street in the village of Sing Sing, running north and south, as we assume. At the place of the accident were sidewalks on both sides of the street, seven or eight feet wide, with a brick pavement about about five feet wide in the center, in good order and condition. The side walk was about three feet higher than the road-bed, and there was more or less slope on the edge, but the angle of descent was left quite indefinite by the testimony. The edge was composed of soft rock, and was somewhat ragged. The plaintiff was walking on the sidewalk on the east side of the street in the evening, when it was quite dark, and she started to cross the street to the *464west side. When she came to the bank at "the edge of the sidewalk she fell, and received the injuries of which she now complains. The cause was' tried before a jury, and the questions respecting the negligence of the defendant in leaving the street in the condition it was, and the contributory negligence of the plaintiff, were fairly submitted to the jury, and the finding was in favor of the plaintiff.. We think this is a case where a recovery against the defendant may be sustained. It is a corporate duty, resting upon the municipal corporations in this state, under their charters, to maintain the streets and sidewalks within their municipalities in a reasonably safe condition for public travel, and whether it does so in a given case becomes a question of fact for a jury. Bullock v. City of New York, 99 N. Y. 654, 2 N. E. Rep. 1. This rule has no application to powers of a discretionary or legislative character, but only to such as are purely ministerial. As a result of this rule, such corporations are liable to individuals for injuries resulting from their negligence in maintaining the street's and sidewalks in a safe condition for travel in the usual modes. There is no evidence in' this case tending to show that the grade of the street or sidewalk where the plaintiff received-her injuries had been determined by the municipal authorities, but the testimony rather tended to show that a corporate duty to render the place safe had been neglected. The plaintiff had the right to cross the street at the place of the accident, upon the assumption that all parts of the street were reasonably safe. Brusso v. City of Buffalo, 90 N. Y. 679. There was no barrier or warning. In the case of Clemence v. Auburn, 66 N. Y. 334, a portion of the sidewalk was built upon a new grade, and where the old and the new walk were joined there was a difference of several inches, and a stone to connect them was laid at a slope of six inches in about three feet and a half, and the plaintiff slipped and fell there, and a nonsuit was held erroneous. In that case, as in this, the sidewalk was perfect in its way, but, as it was dangerous, it was deemed negligent to permit it to remain in that condition. We think the judgment and order should be affirmed, with costs.