(concurring.) The defendant is a municipal corporation, having such charge of its streets as highway commissioners have in towns. The proof shows that the village, to make an easier grade, dug down the part of a highway which is traveled by vehicles, and left some six feet high the sidewalk along the same. The descent was nearly perpendicular, and there were dangerous projecting sharp pieces of rock upon the inclosure from the sidewalk to the street. The plaintiff on a very dark night in December, 1889, was passing along this sidewalk. The paved part was bad under foot, and she attempted to cross to the other side of the street.- In doing so she was thrown from the sidewalk to the street. She was 58 years of age, and heavy, and was injured severely. The defendant is liable, if the jury find that the road was unsafe. In the case of Saulsbury v. Village of Ithaca, 94 N. Y. 27, the court of appeals held the village liable to a person who was cast down from a sidewalk which was built above the street, and unguarded on either side by reason of a lack of railing. The plaintiff had a right to cross the street at any point. Brusso v. City of Buffalo, 90 N. Y. 679. The plaintiff was not, as matter of law, guilty of negligence which contributed to the injury. She knew there was some descent, but was ignorant of its extent. She was very careful. The .boundary between the traveled part of the road and the sidewalk was not visible. Jewhurst v. City of Syracuse, 108 N. Y. 303, 15 N. E. Rep. 409. The judgment should be affirmed, with costs.
Pratt, J., concurs.