If this case had been submitted to the jury, they could have found from the evidence that a wedge-shaped hole, 28 inches long, 12 inches wide and 4 inches deep, had existed for a year in a crosswalk of one of the public streets of the city of Buffalo; that the edges of the Medina flagstones bordering upon the hole were slanting and slippery, as they had been rounded by the passage of vehicles; that the plaintiff knew of the hole but did not see it at the time of the accident, as there was a covering of snow on the crosswalk and the wind had blown snow into the hole so that it was concealed; that when walking at an ordinary gait, in the daytime, thinking about his business, he stepped on the smooth, round edge of one of the flagstones contiguous to the hole, his foot turned and slipped into the hole, he stumbled, fell and sprained his ankle severely; that he did not see the hole owing to the snow, and did not know that it was just where he stepped when he was injured. One witness, a teamster, testified that he had driven into the hole with a load and it almost knocked his horse down, and another, who saw the hole a year before the accident, said that when a forward wheel went into the hole "it was liable to throw you off the wagon."
From these facts the jury could have found that the hole was the proximate cause of the injury and that the city was guilty of negligence in permitting the crosswalk to remain in such a dangerous condition for so long a period. While the plaintiff testified at one time that he did not see his foot go into the hole, but that it was his "theory" that it went in, he also swore positively on the direct, cross and re-direct examinations that his foot went into the hole. It was not necessary for him to see his foot go in, for he could testify from the sense of touch or feeling whether it went in or not. *Page 77
Because we held in one case, under its peculiar facts, that a depression of two and one-half inches in a sidewalk was not dangerous, we are asked to hold in this case that a hole four inches deep in a crosswalk is safe. (Beltz v. City ofYonkers, 148 N.Y. 67.) The logic of the request suggests the query whether a hole six or eight inches deep is free from danger as matter of law. How deep must a hole be to present a question of fact? With what kind of a rule can the court measure it, after brushing aside trifles? It was the duty of the city to remedy such defects as a man of ordinary prudence would regard as dangerous. Can we say judicially that the natural result of stepping or slipping into a hole as deep as the one under consideration would not be a fall with physical injury as a consequence? Unless we can so declare as matter of law, a question of fact was presented for the jury as to the negligence of the defendant.
The jury could have found that the plaintiff was free from contributory negligence, for the hole was partially concealed by the snow, and he was not bound to have its precise location in mind when passing over the crosswalk. While the jury could have found that he was negligent, the evidence would not compel them to do so.
The main contention of the defendant, in its effort to sustain the nonsuit, is that the plaintiff failed to comply with chapter 572 of the Laws of 1886 and section 16 of chapter 105 of the Laws of 1891, in that he filed no notice of intention to sue with the corporation counsel of the defendant within the statutory period. The earlier statute requires notice of intention to commence an action for damages for personal injuries alleged to have been sustained by reason of the negligence of the officers of any city having fifty thousand inhabitants or over, to be filed with the counsel to the corporation "or other proper law officer thereof" within six months after such cause of action shall have accrued, or the action cannot be maintained. The later statute provides that no action to recover "any claim against the city (of Buffalo) shall be brought until the expiration of forty days after the claim shall *Page 78 have been filed with the city clerk for presentation to the common council for audit, * * * and no action shall be maintained against the city for personal injury unless notice of intention to commence such action shall have been filed with the corporation counsel within six months after such cause of action shall have accrued."
It appeared upon the trial that the plaintiff filed a verified claim in due form and in due time with the city clerk, who reported it to the board of aldermen and it was referred to a committee. One month later an assistant of the corporation counsel, who had charge of the claim, conferred with the plaintiff's attorney concerning it, examined the plaintiff and his physician under oath, as permitted by the city charter, and in reply to a request for settlement informed said attorney that he might wait before he took any further proceedings and he would submit the facts to the authorities and let him know. Nearly two months later the plaintiff's attorney saw the assistant corporation counsel, who still had charge of the claim, and asked him if he had heard anything and he replied: "Yes, there is no chance. They have refused the claim. * * * You need not file any notice. There will be no settlement in the case, so that you may as well commence the action at once." The plaintiff's attorney, owing to this statement, filed no notice of intention to sue, and it was not until after all this had occurred that the action was commenced.
The assistant of the corporation counsel in charge of the claim had power to waive the service of notice of intention to sue and the evidence would warrant a jury in finding that he did so. The notice affected the remedy only and was merely a method of practice provided for the benefit of the city, which could be waived by it, or by its corporation counsel, or by any "other proper law officer" of the city, such as the assistant corporation counsel, to whom charge of the claim had been committed. There was no waiver of anything which affected the cause of action, as such, but simply of a form of procedure, the object of which, as we have held, *Page 79 was to seasonably inform the counsel of the corporation of the claim which was to be sued upon in order that it might be immediately investigated and properly defended. (Missano v.Mayor, etc., of N.Y., 160 N.Y. 123. See, also, Sheehy v.City of New York, 160 N.Y. 139; Sprague v. City ofRochester, 159 N.Y. 20.) No further discussion is necessary in view of the prevailing opinion below.
I think that the judgment entered upon the nonsuit was properly reversed and that the order of the Appellate Division should be affirmed and judgment rendered against the defendant upon its stipulation, with costs.
PARKER, Ch. J., GRAY, O'BRIEN and CULLEN, JJ., concur with HAIGHT, J.; BARTLETT, J., concurs with VANN, J.
Order reversed, etc.