
    Lucy A. Grissinger, Respondent, v. International Railway Company and City of Buffalo, Appellants.
    Fourth Department,
    March 8, 1911.
    Railroad — municipal corporations—negligence—injury by depression in pavement.
    Action against a street railroad company and a city to recover damages for personal injuries received by a passenger on a street car caused by stepping into a depression in asphalt pavement while alighting from the car. The depression was about three and one-half feet long, over two feet wide, and of a depth varying from two and one-quarter inches to one and one-half inches.
    
      Held, that a finding by the jury that a depression of that character was sufficient to charge the defendants with negligence was against the weight of evidence. Kruse, J., dissented, with memorandum.
    Appeal by the defendants, the International Railway Company and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 22d day of July, 1910, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the 23d day of July, 1910, denying the defendants’ motion for a new trial made upon the minutes.
    The action was commenced on the 19th day of July, 1909, to recover damages for personal injuries sustained by the plaintiff alleged to have been received solely through the negligence of the defendants.
    
      
      George E. Pierce and Clark H. Hammond, Corporation Counsel, for the appellant City of Buffalo.
    
      Dana L. Spring for the appellant International Railway Company.
    
      Charles W. Strong and Sherman S. Jewett, for the respondent.
   McLennan, P. J.:

Highland avenue, one of the streets in the city of Buffalo, extends in an easterly and westerly direction. Elmwood avenue, another of the streets of said city, extends in a northerly and southerly direction, crossing Highland avenue. At the time of the accident both of said streets were paved with asphalt, and there are granolithic walks on either side of both avenues or streets. The asphalt pavement in the street forms the walk across the street, there being no walk of a different character or material from the pavement itself. The International Bailway Company operated a double-track surface street railroad in Elmwood avenue, the cars going north being operated over the easterly tracks and the cars going south being operated over the westerly tracks in said avenue.

On the 22d day of January, 1909, the plaintiff was a passenger on one of the cars of the defendant International Bailway Company, being operated on Elmwood avenue, and, wishing to alight from said car at Highland avenue, signaled the person in charge of the car, and the car was brought to a stop at or near the northerly side of the north walk on Highland avenue, and the plaintiff alighted from the car in which she had been riding, and, in stepping from the car to the pavement in Ehnwood avenue, stepped into a depression in the street where the asphalt had been broken and worn away and sustained the injury for which she complains.

The great preponderance of the evidence is to the effect that the hole or depression into which the plaintiff stepped vras three feet seven inches long, extending east and west, and two feet four inches wide at the widest part, north and south; that the hole begins at the westerly edge, one foot seven and three-quarters inches away from the edge of the easterly rail of the easterly track. At the part of the hole nearest the railway track it is two and a quarter inches deep. One-half way across the hole on the northerly side it is one and three-quarters inches deep, and on the southerly side it is one and a half inches deep. At the easterly end it is one and a half inches deep. So that the deepest depression was two and a quarter inches, the bottom of which was practically level. It was filled with water and the sides of the depression sloped gradually. The accident occurred in the night.

It seems to me clear that under the authorities the finding of the jury that this depression or hole was of such character as to charge the defendants with negligence was clearly against the weight of the evidence. (Butler v. Village of Oxford, 186 N. Y. 444; Corson v. City of New York, 78 App. Div. 481; Hamilton v. City of Buffalo, 173 N. Y. 72; Miller v. City of Buffalo, 136 App. Div. 914; Getzoff v. City of New York, 51. id. 450 ; Powers v. City of New York, 121 id. 433 ; Gastel v. City of New York, 194 N. Y. 15.)

We conclude that under these authorities the finding of the jury that the depression was of such character as to charge the defendants, or either of them, with negligence, is contrary to the weight of the evidence.

We, therefore, conclude that upon that ground the judgment and order appealed from should be reversed and a new trial granted, with costs to appellants to abide the event.

All concurred, except Kruse, J., who dissented in a memorandum; Spring, J., not sitting.

Kruse, J. (dissenting) :

I dissent.

I think the hole in the pavement was well calculated to cause just such an injury as plaintiff sustained. The hole was at the usual stopping place, right in line with the sidewalk of the cross> street. Another person had previously fallen there (at least so the jury could find from the evidence), of which both defendants had notice more than a month before this accident. In wet weather the depression was filled with water. Raturally the street there would look like other portions of the street, and upon this occasion the street was wet and there was water in the hole. The accident occurred between eleven and twelve o’clock at night, and it was dark where plaintiff alighted. While there was an electric light in the vicinity, the shadow of the car darkened the place in question.

I think the jury could well find that both defendants were negligent in permitting the street to be and remain in the condition in which it was, and that the plaintiff was injured without any fault on her part.

I, therefore, vote for affirmance.

Judgment and order reversed and new trial ordered, with costs to appellants to abide event.  