
    Michael Morrassy, Resp’t, v. Mayor. Aldermen and Commonalty of the City of New York, et al., App’lt.
    
      (New York Superior Court, General Term.,
    
    
      Filed May 2, 1887.)
    
    Negligence—Municipal corporations—Streets—Stepping-stones.
    Plaintiff, while walking along Fourth street, in New York city, fell over a large block of stone which had .been used as a stepping-stone, and for a long time allowed to be on the sidewalk, and the plaintiff was badly hurt thereby. Held, whether the allowing such an obstruction to remain on the sidewalk was in itself negligence should be left to the jury under all circumstances of each case as a question of fact. Following Dubois v. City of Kingston, 102 N. Y., 221; 1 N. Y. State Reporter, 350.
    
      Appeal by defendants from judgment in favor of the plaintiff for $750, entered on verdict.
    
      Peter Mitchell, for resp’t; David J. Dean, for app’lts.
   O’Gorman, J.

The facts are that plaintiff, while walking along Fourth street in this city, fell over a large block stone which had been used as a stepping-stone and for a long time allowed to be on the sidewalk, and the plaintiff was badly hurt thereby.

The learned trial judge submitted to the jury the question at issue whether the negligence of the defendants contributed to the disaster, but directed the jury, as a matter of law, that the defendant corporation was negligent in allowing the block to remain on the sidewalk.

To this direction, the defendant corporation excepted, and the only question to be considered on this appeal is whether that exception was well taken.

In the case of Dubois v. City of Kingston (102 N. Y., 221, 1 N. Y., State Rep., 350), the plaintiff was injured from a similar cause, and had a verdict and judgment in his favor, from which the defendant appealed.

The court of appeals held that the court erred on the trial in denying the defendant’s motion to dismiss the complaint, and that there was no evidence which justified the conclusion that the stepping-stone, there in question, was dangerous to travelers or that the defendant, the city of Kingston, was liable for negligence in allowing it to remain on the sidewalk.

This decision was rendered since the trial of the case at bar, and it may justly be inferred from it that in the opinion of the court the question whether the allowing such an obstruction to remain on the sidewalk was in itself negligence, should be left to the jury -under all the circumstances of each case, as a question of fact.

The refusal, in the case at bar, to send the question to the jury was, therefore, error.

The judgment should be reversed and a new trial ordered, with costs to abide the event.

Sedgwick, C. J., and Freedman, J., concur.  