
    DALE v. CITY OF SYRACUSE.
    (Supreme Court, General Term, Fourth Department.
    September, 1893.)
    1. Municipal Corporations—Defective Street—Action for Injuries—De fense.
    In an action against a city for personal injuries caused by a defect in a cross walk left by a street-railway company in building its track, it is no defense that 30 days previous to the injury such company was enjoined from completing its work, where such city was not a party to the injunction suit, and in its answer admits that at the time of the injury it was its duty to keep the walk in repair.
    2. Same—Contributory Negligence—Question for Jury.
    In such action plaintiff testified that just at the time of the accident his attention was attracted from the walk to a person who was cleaning snow in an improper manner from the walk of the adjacent building, of which he was janitor, and that he did not notice the hole in the walk, with which he was familiar. Held, that the question as to whether or not plaintiff was guilty of contributory negligence was for the jury.
    8. Same—Cause of Injury. .
    In such case, the question as to whether the fall of plaintiff was caused by the hole in the walk or by the slippery condition of the walk, arising from a fall of snow during the previous night, for which condition defendant is not liable, was properly submitted to the jury under appropriate instructions.
    Appeal from circuit court, Onondaga county.
    Action by William Dale against the city of Syracuse for personal injuries caused by a defective cross walk on a certain street in such city. From a judgment entered on the verdict of a jury in favor of plaintiff, and from an order denying its motion for a new trial, made on the minutes, defendant appeals.
    Affirmed.
    Argued before HARDER P. J., and MERWIN, J.
    ■Charles E. Ide, for appellant.
    Hancock, Beach & Devine, for respondent.
   MEBWDí, J.

On the 24th December, 1890, the plaintiff in passing over the cross walk on West Fayette street at its intersection with South Salina street, in the city of Syracuse, fell, and received a somewhat serious injury upon his head; and the action in this case is for the recovery of the damages sustained by such fall. The jury, by their verdict, have found that the plaintiff was injured by reason of the negligence of the defendant, without any negligence on the part of plaintiff that contributed to the result. The condition of the cross walk at the time of the fall was at the trial a matter of dispute. In the fore part of the November previous the greater part of the flagging composing the walk had been torn up by the Syracuse Consolidated Street-Railway Company, preparatory to the laying of a curve for the purpose of connecting the track of the company on South Salina street with the line of the company on West Fayette street. Before this was completed an injunction had been obtained by Mr. Kirk, the owner of the block on the northerly corner, restraining the company, its agents and servants, and all other persons acting in aid or assistance of the company, “from in any manner interfering with the streets in front of plaintiff’s (Kirk’s) premises, known as South Salina street and Fayette street, or touching or molesting the same, or laying down, constructing, or maintaining street-railway tracks, switches, or curves in, along, upon, or in front of plaintiff’s said premises in either of said streets,” until the further order of the court. This injunction was obtained and served on the 28th .November, 1890, and thereupon the company stopped its work, leaving the cross walk, as the plaintiff claimed, in an unsafe and dangerous condition, with holes between the flagstones or other stones that were there, and that it so remained until after his injury. There was evidence on the part of the plaintiff that sustained this view, and supported the verdict in that regard. The defendant, however, claims that by reason of the injunction, which continued until after the injury, it had no right to interfere with or repair the cross walk, and that, therefore, it is not chargeable with its unsafe condition. We are of the opinion that this position is not sound, because (1) the answer of the defendant admits that on the 24th December, 1890, it was the duty of the defendant to keep that cross walk in good condition and repair, and free of obstructions, and in safe condition, so that the same could be traveled over without endangering the lives and limbs •of those attempting to walk upon or across it. (2) This defendant was not a party to the injunction suit, nor was it acting in aid -or assistance of the railway .company. The injunction was not designed to interfere with the duty of the city in keeping its streets and sidewalks in a reasonably safe condition. The particular defect which, as the plaintiff claims, caused him to fall, was a hole or depression in the cross walk, into which, as he came along, he stepped, and which at the time he did not notice, because his attention was attracted to a man on the opposite sidewalk, engaged in removing snow in an improper way. The defendant, however, claims that the fall of plaintiff was not occasioned by any hole in the walk, but by a slippery condition of the walk, arising from a fall of snow during the night previous. Whether the hole caused the plaintiff to fall was, however, a question for the jury. The condition of the cross walk as left by the railway company, and as it was on the morning of the injury, was fully described. The plaintiff gave his recollection of how the accident happened, and was exhaustively examined and cross-examined about it. The court charged that, if the plaintiff did not fall by reason of the imperfect, irregular condition of the crosswalk, he could not recover, and that the city was not responsible . for the slippery condition. The jury in effect found that the accident would not have happened had it not been for the imperfect condition, as left by the railway company, and permitted by the-defendant to remain, although sufficient time had elapsed to bring-to' the defendant notice of the defects. In this respect we think the verdict should not be disturbed. Taylor v. City of Yonkers, 105 N. Y. 208, 11 N. E. Rep. 642.

It is further claimed that upon the undisputed evidence the plaintiff was guilty of contributory negligence. The argument is based on the testimony of the plaintiff himself that he was not at the-moment looking to see where he was stepping, but allowed his attention to be attracted away from the cross walk. The occurrence was about 15 minutes before 7 o’clock in the morning. It was not fully daylight, though light enough to see across the street. The plaintiff was the janitor of the Kirk block, and was coming from his house in the southern portion of the city. He was walking at a moderate gait, and as he came to the cross walk at the corner opposite the Kirk block, he noticed a man cleaning the ice and snow from the sidewalk in front of the Kirk block with a spud in a manner that would deface the walk. He was about to call to him when he fell. It was a part of the duty of the plaintiff to look after the sidewalk that the man was cleaning off. By reason of his attention being called to this he did not at the moment notice where he was "stepping. He was familiar with the condition of the cross walk. The question is whether, as matter of law, it should be said that the failure of plaintiff to constantly look to see where he stepped was negligence. Was he careless in not stopping still when he lookéd at the man across the street? His attention was suddenly attracted to a matter that naturally would for the moment divert his thoughts. The question whether he was chargeable with carelessness was, we think, properly left to the jury. See Driscoll v. Mayor, etc., 11 Hun, 101; Thomas v. Mayor, etc., 28 Hun, 110. In Palmer v. Dearing, 93 N. Y. 10, it is said:

“While previous knowledge by a party injured of a dangerous situation, or impending danger, from which a person of ordinary intelligence "and prudence might reasonably apprehend injury, generally imposes upon him the duty of exercising greater care and caution in approaching it, yet the degree of care which should be required of such a person has uniformly been held in this state to be a question of fact to be determined by the jury.”

The cases of McCabe v. City of Buffalo, (Sup.) 18 N. Y. Supp. 389, and Splittorf v. State, 108 N. Y. 205, 15 N. E. Rep. 322, are clearly distinguishable from the present.

The foregoing considerations lead to an affirmance of the judgment. Judgment and order affirmed, with costs.  