
    William A. Corr, Respondent, v. The City of New York, Appellant.
    Second Department,
    October 23, 1907.
    Municipal corporation — negligence — injury - by projecting manhole — stare decisis.
    •In an action for personal* injuries the question as to whether the defendant . municipality was.negligent in maintaining for-four month's a sewer manhole raised from three to six inches above the level of a hard earthen sidewalk, is properly submitted to the jury.
    A municipality Which has allowed a manhole to exist in said'condition for four months is' not exculpated because the street when paved, as intended, would be flush with the manhole. , ' .
    Each case of negligence turns upon its peculiar facts and the decisions -in Other cases are not direct precedents.
    
      Appeal by the defendant, The City of New York, from a, judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 30tli day of January, 1907, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 1st day of February, 1907, denying the defendant’s motion for a new trial made upon the minutes. ' - > ■
    
      Jamies D. Bell [William B. Ellison with him on the brief], for the appellant.
    
      Herbert N. Warbasse, for the respondent.
   Jerks, J.:

The action is against a municipal corporation for negligence. The plaintiff’s case is that when he was walking on an even, smooth, hard earthen sidewalk of the city at 11 o’clock of a February night he stumbled over the top of a sewer manhole and fell to his injury. The sewer was built under this sidewalk and the top of this manhole stood above the surface 6, 5 or 3 or 4 inches, by various estimates. I think that the learned court rightly submitted the-question of liability to the jury, and that there is no reason for disturbing the judgment upon the verdict for the plaintiff.

The learned corporation counsel contends that the court should have disposed of the ease in favor of the defendant upon the law. He attempts to sustain this contention by citation of the rule of Butler v. Village of Oxford (186 N. Y. 444). I understand' that this rule rests upon.the’proposition that a municipality cannot be held liable for such slight defects as appeared in that case and in similar cases, like Hamilton v. City of Buffalo (173 N. Y. 72), because the defects were not such as an ordinarily prudent man would regard as dangerous and which, therefore, should be remedied within a reasonable time. And further, that .there is no obligation upon a municipality to keep the streets perfect, for that would be' a practical impossibility.

The courts constantly reiterate that each case of negligence turns upon its peculiar facts, and that the decisions in other cases are not direct precedents. I think that ’ the case at bar is not within the rule of the Butler Case (supra) and that the city as matter of law was not absolved from liability for this accident.- Here was an obstruction caused uót by omission but commission standing up right in the traveler’s usual way to the height of from three to six inches. In Butler's Case (supra) the court,: per Hisoook,. J., say (p. 447): “It is.'a matter entitled to some consideration that the. situation complained ' of' was hot the result of breakage or wear which had impaired -the original condition of the walk and which fact of itself sometimes quite strongly suggests the inference of negligence.” '

It matters not that this construction was temporary in the sense'that it was in advance of other projected improvements in the street, par"ticnlárly the-flágging thereof, and that when the flagging was laid the rim of the manhole would be flush or nearly-flush with the surface, in view of thé testimony of one witness that this condition had been suffered to ■ remain for 4 months and by another witness' for one year. The general rule is well expressed'in the case of Beltz v. City of Yonkers (148 N. Y. 67), where the court say (p. 70): “ When the defect is of such a character that reasonable and prudent-men may reasonably differ as to whether an accident could or should have been reasonably anticipated from its existence or not, then-the case is generally one for the jury; but -wlieh, as in this case, the d’efect is so slight that no careful or prudent maif would reasonably anticipate any danger from its éxistence but, still, an- -accident, happens which could have been guarded against by the exercise of extra:ordinary care and foresight, thé question of the defendant’s responsibility is one’ of Hw.”

The judgment; and order must be affirméd, with costs.

Present — Jenks, Hooker, Gaynor, Rich and Miller, JJ.

Judgment and order unanimously affirmed, with, costs.  