
    Morris Kantrowitz, Appellant, v. Brooklyn, Queens County and Suburban Railroad Company, Respondent.
    Second Department,
    May 19, 1916.
    Railroad—negligence — liability under Railroad Law, section 178, for defects in pavement in city street — pleading — sufficiency of complaint — demurrer — dismissal at opening of trial.
    A complaint in an action for personal injuries which alleges that the defendant was negligent in permitting and maintaining the pavement in a city street to be improperly and dangerously constructed, and to remain in an unsafe and dangerous condition, in violation of section 178 of the Railroad Law, whereby the plaintiff when driving in the street had the wheel of his vehicle caught and broken in “an abrupt break, hole or hollow,” so that the plaintiff was thrown to the pavement and injured, should not be dismissed as if demurred to for not stating a cause of action, because the dimensions of the defect were described as “ about 27" long, 6" wide and 2" deep.”
    A dismissal of a complaint at the opening of the trial, upon defendant’s motion that it does not state facts sufficient to constitute a cause of action, is, in effect, a holding that the complaint is demurrable.
    Appeal by the plaintiff, Morris Kantrowitz, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 15th day of February, 1916, upon a dismissal of the complaint by direction of the court upon the pleadings at the opening of the case.
    
      Forrest 8. Chilton [Joseph B. Quinlan with him on the brief], for the appellant.
    
      Harold L. Warner [George D. Yeomans with him on the brief], for the respondent.
   Jenks, P. J.:

The plaintiff was dismissed at the opening of the trial upon defendant’s motion that the complaint did not state facts sufficient to constitute a cause of action. Thus the court in effect held the complaint demurrable. (Ketchum v. Van Dusen, 11 App. Div. 332; Baylies Tr. Pr. [2d ed.] 246, and authorities cited.)

The motion for dismissal rested solely upon the proposition that the care required of the defendant, with respect to the character of the defect (not as to notice), was like unto the care required of the municipality, and that many decisions had absolved municipalities as matter of law from any negligence for depressions or defects in streets of even larger relative dimensions. Applying this rule of liability so far as invoked (Grissinger v. International Railway Co., 143 App. Div. 631; Bateman v. N. Y. C. & H. R. R. R. Co., 47 Hun, 429: See, too, Weldon v. N. Y., N. H. & H. R. R. Co., 159 App. Div. 654; Durr v. N. Y. C. & H. R. R. R. Co., 184 N. Y. 320), it might well have been that when the facts were brought out by trial the decisions would have justified or even have required the court to dismiss the plaintiff in that as matter of law the defendant was not liable for a defect or depression of the dimensions in question. But in Faber v. City of New York (213 N. Y. 411) the court, per Seabury, J., cites and approves the expression of Chase, J., in Terry v. Village of Perry (199 N. Y. 79, 82), that “Each case must stand upon its own peculiar facts and the application of such well-known rules of law to such facts. ” When the court dismissed the plaintiff, it could not have known from the mere dimensions the peculiar facts and circumstances of this case upon which to apply the law, and, therefore, it could not determine whether the case fell within the rule that declares municipalities are not liable for slight depressions or differences in their streets, or whether it fell within the exception that when a slight depression or difference in grade is peculiar and especially calculated to result, in injury to those in lawful use of the street, liability may exist. (Terry v. Village of Perry, supra, 84.) Moreover, it did appear by the pleading that the depression or break was in close proximity to the fixed track, and, therefore, it did not present the ordinary feature of a depression from the normal grade or surface of a city street.

We think that a complaint that alleged personal injury to a plaintiff by the negligence of the defendant in permitting and maintaining the pavement in a city street to be improperly and dangerously constructed and to remain in an unsafe and dangerous condition in violation of its duty under section 178 of the Railroad Law (Consol. Laws, chap. 49 [Laws of 1910, chap. 481], as amd. by Laws of 1912, chap. 368), whereby the plaintiff when driving his vehicle in the street had the wheel of his vehicle caught and broken in “an abrupt break, hole or hollow,” so that the plaintiff was thrown to the pavement and injured, should not have been dismissed as if demurred to for not stating a cause of action, because the dimensions of the defect were described as “ about 27" long, 6" wide and 2" deep.”

The judgment is reversed and a new trial is granted, costs to abide the event.

Thomas, Carr, Mills and Rich, JJ., concurred.

Judgment reversed and a new trial granted, costs to abide the event.  