
    Dubois v. City of Kingston.
    
    
      (Court of Appeals,
    
    
      Filed April 13, 1886.)
    
    1. Municipal corporations—Negligence—Nuisance—Stepping-stone—
    When city not liable for injury caused by.
    A municipal corporation does not, by assenting to the placing of a stepping-stone in a proper position upon the edge of a sidewalk, become liable for damages by i\ ason of accidents caused thereby. It is not a nuisance.
    2. Same—Evidence—Injury to other persons.
    The fact that other persons had been injured by falling over the stone does not of itself establish that it was improperly placed in the location it occupied, or that it was necessarily of such a dangerous character as to require the interposition of the city authorities to remove it.
    Appeal from judgment general 'term supreme court, first department, affirming judgment in favor of plaintiff.
    
      John J. Linson, for appellant.
    
      John E. Van Etten, for respondent.
    
      
       Reversing 32 Hun, 239 mem.
      
    
   Miller, J.

The plaintiff was injured on the evening of November 23, 1872, while running to a fire, which appeared to be in the direction of his own house, in the city of Kingston, by falhng over a stepping-stone lying on the sidewalk in one of the streets of said city. The stone was three feet four inches in length, twenty inches wide, and fourteen inches high. It lay lengthwise with the curb, and on the inside thereof, in front of' the building containing the post-office, a music hall and several stores. Across from the stone, diagonally on the inner side of the walk, was a railing, guarding and running along an area-way which led to the basement of the building. This area-way occupied three feet and seven inches of the sidewalk, leaving a passage-way, at its most narrow point between the railing and the stone, of from four feet and ten inches to six feet. At the north end of the stone over which the plaintiff stumbled was a lamp-post, which covered about one-half the width of the stone. At the south end of the stone was a cross-walk. The stone was placed there some three years previously as an accommodation to the public in alighting from and getting into vehicles, and without the knowledge or consent of the defendant, and no proof was given showing any express notice thereof to the defendant. There was evidence upon the trial that some five different persons had fallen over the stone, and been injured thereby. At the time of the accident in question gas-lights were burning in the post-office and the street-lamp was lighted.

Actions against municipal corporations for injuries sustained by individuals while using or passing along its streets are founded upon the ground of negligence of its officers in the performance of their official duties, and cannot be maintained without evidence showing that they have been derelict in this respect, by means of which the injury has been sustained. We think there was no such proof upon the trial of this action. The stepping-stone over which the plaintiff fell and was injured, was not of unusual size, or of. an improper construction, nor was it located at an improper place. It was placed in a position on the sidewalk most convenient for persons who should alight from a wagon or carriage, or get into the same from the sidewalk, and thus it was a means of accommodation to those who had business at the post-office, or in the building in front of which it was located. It was not any more exposed than was essential for its proper and useful location.

The passage-way between the stone and along the area-way of the building was ample for the accommodation of individuals who were going along the sidewalk, and any person who exercised ordinary care and caution could, under the circumstances presented, have passed along by this stepping-stone without coming in contact with it. The gas was lighted in the post-office, and in the lamp near by, and hence it was easy to see the stone, and to avoid it by a proper use of the faculties. The fact that the plaintiff was running in the direction of his own house, with the apprehension that it might be on fire, should not excuse him for not avoiding a stone of this kind placed on the sidewalk. It was not necessarily in his way. In fact it was on one side of the walk, and on the side near the street curb. There was no difficulty in passing along, the open space without coming in contact with it. The steppingstone could have been placed in no position in -which it could have been more useful and convenient in front of the post-office, and there is no ground for claiming that it should have been guarded and protected so as to prevent people from running against it. Such caution is not required in placing such a necessary and convenient appendage in front of a budding in the public street, and it cannot be said, we think, that it is dangerous necessarily when occupying such a position.

The fact that other persons had been injured by falling over the stone does not of itself establish that it was improperly placed in the location it occupied, or that it was necessarily of such a dangerous character as to require the interposition of the city authorities to remove it. Such an accident might well take place in reference to any necessary structure connected with the sidewalk, or a budding thereon, which might possibly interfere with persons using the same.

It would be extending the rule of the liability of municipal corporations far greater than has yet been done in any decided case, to hold that they are liable for assenting to the placing of stepping-stones on the edge of sidewalks, in front of hotels, stores, public buddings and private residences. The courts have gone quite far in holding such corporations to a very strict responsibility in reference to accidents caused by a failure of their officers to keep the streets and sidewalks in a proper and safe condition; but it would be adding to the corporate liability beyond reasonable limits, to hold that stepping-stones, which are ahnost a necessity in providing for the interest, comfort and convenience of the public, in the maintenance of walks, avenues and streets, constitute a nuisance or obstruction, and that corporations are liable for damages by reason of accidents caused thereby. As this case is presented, there is no evidence which justifies the conclusion that the stepping-stone in question was dangerous to travelers passing along the street, or that the city authorities were chargeable with negligence in adowing it to remain where it was located.

It may also be remarked that the evidence of the plaintiff tended strictly to show that he was chargeable with negligence which contributed to the injury. There was abundant room for him to pass by the stepping-stone without running against it. A very small portion of the end of the stone upon which he fell obstructed the sidewalk, and, being well acquainted with the locality, had he been careful in exercising his faculties, he could have avoided the accident.. In not doing so he was clearly negligent.

For the reasons stated the court erred upon the trial in denying the motion to nonsuit the plaintiff, as well as the motion to dismiss the complaint. The judgment should be reversed, and a new trial granted, with costs to abide the event.

All concur, except Rapallo, J., absent.  