
    Mary R. Moroney, Respondent, v. The City of New York, Appellant.
    Second Department,
    March 8, 1907.
    Negligence—municipal corporations — injury to pedestrian on defective sidewalk —judgment for plaintiff affirmed.
    Although the fact of the happening or non-happening of previous accidents on an alleged defective sidewalk may bear upon the character of tliq defect and on the question of notice to the municipality, the fact that other persons escaped injury does not excuse the municipality from allowing the defect to continue.
    
      Thus, where the plaintiff has shown that she suffered a fall and injury by reason of her toe catching in a hole tinder a flagstone which projected about two inches above the adjoining stone, and thqj; said condition'existed for more than a year, the question of the defendant’s negligence should be submitted to the jury, although the plaintiff gives no proof of a prior accident, and the defendant’s witnesses state that they had no knowledge of the defect.
    Although the distance which one stone was raised above the other was not of itself negligence, yet, when there is a hole thereunder sufficiently large to catch and hold a foot, the question of negligence should be submitted to the jury,
    Gaynoe, and Rich, JJ., dissented, with opinion.
    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 21st day of February, 1906, upon the verdict of a jury for $500, and also'from an order entered in said clerk’s office on the 19th day of March, 1906, "denying the defendant’s motion for a new trial made upon the minutes.
    
      James W. Covert \ Jmnes D. Bell and John J. Belany with him on the brief]., for the appellant.
    
      Elmer B. White, for the respondent.
   Judgment' and order affirmed, with costs, on the opinion of Mr Justice Kelly at Trial Term.

Hirschberg, P. J., Woodward" and Miller, JJ., concurred ; Gather, J., read for reversal, with whom High, J., concurred.

The following is the opinion of Mr. Justice Kelly delivered at Trial Term:

Kelly, J.:

The plaintiff sued to recover damages sustained, as she alleged, through the negligence of the defendant in failing to keep the sidewalk in reasonably safe condition. She testified that while walking east on the north side of Forty-first street, in the borough of Brooklyn, on the' evening of November 3, 1903, the tip of her right shoe caught under a projecting flagstone, causing her to fall. • Her evidence was that the shoe was caught so that it required some force to remove it. She was corroborated by her husband, who was with her. A witness, living on the .opposite side of the street, saw her fall. There is no substantial dispute as to the condition of the flagging. It was made of some patent substance, and at the place where the plaintiff caught her foot two of the artificial flagstones joined. They wore laid by different makers at different times, and the upper or easterly stone was, as plaintiff claimed, two inches, and as defendant concedes, one and three-quarter inches above the lower. This condition had existed for more than-a year. Defendant’s policemen and other witnesses testified that they had no knowledge of the hole or space under the higher flagstone in which plaintiff’s shoo was caught. Photographs were introduced in evidence which plaintiff averred showed the existence of the hole, and which defendant insisted showed that the alleged defect consisted simply in the elevation of one stone over the other for the space indicated. The claim was presented to the city at a time when the flagging remained in the condition in which it was on the night of the accident, but no investigation appears to have been made as to the existence of the hole. Therefore, on this trial, we have the positive statement of plaintiff and her witnesses met by the negative testimony of the city from witnesses who say they never saw the hole or space.

Whether the condition claimed by the plaintiff raised an issue as to whether the walk was reasonably safe was vigorously contested by the corporation counsel. He insists that the court should say as matter of law that the defect was not such as t'o warrant a finding by the jury that the situation was likely to result in accident. No evidence was introduced of previous accident occasioned by pedestrians catching their feet in the hole or space under the flagging^ and it was conceded that the street was a regularly paved street, built upon and used by the public.

Is this a case requiring the court to submit the question whether the highway is in reasonably safe condition to the jury? The absence of evidence of previous accident is important. Of course, a condition not intrinsically unsafe which has uniformly proved sufficient and safe is not changed to one insufficient and unsafe x simply because one out of hundreds or thousands meets with an accident in encountering it. The policemen called by the city testified that they had passed over this uneven condition of sidewalk repeatedly and had never heard of or anticipated accident or danger from it. When reasonable men may differ as to whether or not the condition -was'such as'to call- on the city officials to anticipate acci-dent, the question is for the jury; (Beltz v. City of Yonkers, 148 N. Y. 67.) Is this such si case ? The Court of Appeals has decided that minor defects and irregularities in sidewalks are not such defects as will justify the submission of the' question to ,tlie jury, because no street can be made and maintained in absolutely perfect conditionand the court -decided as matter of -law in the"Beltz case, that a depression of two and one-lialf inches was not dangerous. In Hamilton v City of Buffalo (173 N. Y. 72) a depression of -four .inches in a sidewalk was' held not to be dangerous as matter of law. judge Yank, in liis dissenting opinion,, expresses doubt as to the line separating the question as one- of -law'from the question of fact. This difficulty is .always presented in this class of" litigation. Here we know an accident happened ; there is no suggestion of contributory negligence, and the jury have apparently found that a hole or space-existed into which the toe of the pedestrian’s boot entered and was held fast. They have found that she told the truth when she stated specifically that she did not “trip” over the irregularity in the stone, but that her fall was caused by her foot catching in the hole and being held fast. Yowj I am free to sáy that if the question of reasonable safety is to be -determined alone by the dimensions ■ of -the hole, depression or irregularity in the sidewalk, then this space was not as large as the depression in the Beltz Case (supra), in Getzoff v. City of New York (51 App. Div. 456) nor in Corson v. City of New York (78 id. 481), in each of . which actions the appellate courts decided that the condition did not present a case for submission to the jury. It-is true also that there is no evidence of previous accident, but while' this is an important fact I. think it is to be submitted to' the jury for consideration in determining' the main question■—-was the situation reasonably safe ? I do not think it is decisive, because, if the situation was unsafe, it would be manifestly unjust to deny relief to the first person who was unfortunate enough to suffer from it. It would be in effect likening the case to ' one where, an animal, .usually gentle and good-tempered, suddenly manifests evil qualities. It is skid that a dog “'is entitled to one bite ” before his owner is to ■ be héld liable. The learned corporation- counsel urges that this principle is to be applied as between persons injured on the highway and the municipal corporation'controlling the street, and it is said that the Appellate Division in this department has in effect so decided in the Corson Case (supra). I do not so interpret the decision. 'The fact ,of the happening or non-happening of previous accidents may bear on the character of the defect and on the question of notice to the municipality. Where a situation is not unsafe in itself it may be continued without imputation of negligence. But where the condition is unsafe, the fact that individuals may fortunately escape injury is no excuse for its continuance. In the case at bar the jury was told that if the accident was occasioned simply by reason of the fact that one stone was elevated over the other, simply because she tripped she could not recover; and that it was only in case they found that the aperture or hole existed and caught plaintiff’s foot, holding it fast and causing her to fall, that this condition was not reasonably safe and that it had existed for the time charged; only on proof of these facts were they justified in deciding that the sidewalk was not reasonably safe. I am not prepared to say that a hole or aperture in a sidewalk into which the toe of a pedestrian’s shoe may pass sufficiently far to hold the foot fast, requiring force to remove it, is such a minor defect that reasonable and prudent men will not differ as to whether accident should have been reasonably anticipated from its continuance.

The jury have found the facts in favor of plaintiff, and I think the verdict must stand. Motion denied.

Gaynor, J. (dissenting):

The action was for damages to the plaintiff by a defect in a sidewalk. The testimony for the plaintiff of the defect is as follows:

The plaintiff testified that as she was walking with her husband after dark “ my foot caught under a flagging and threw me,” She did not examine" the defect then, but did. after she got well, but does not say what it was or describe it. She says on cross-examination that she could not get her foot out after she fell, her husband had to pull her foot out from under the flagging in order to lift her up, it was held fast there for several moments.” In her preliminary examination when she filed her claim against the city she says she went back and examined the defect the night of the accident. The testimony of another witness that the plaintiff was out in the street next day,, and called on an acquaintance, is not disputed. Her hurt was not great. A woman who lived opposite testified that she saw the accident from her side; that where the sections of the sidewalls met one side was “ some ” 2f or 3 inches higher than the other, and the edge broken off some here .and there; she could not tell what the material of the sidewalk was; I did not particularly look at it,” she says; her observation and estimate was made by looking from across the street, and “ by passing there several times ” — on which side is left to inference. The plaintiff’s husband testified that he went back and examined the defect next day; that one flag was “about” 2 inches higher than the other; “and there'was a couple of jagged edges where a person could put their foot under where the edge of one met the edge of the other; ” that the sidewalk was of concrete; that “ the judgment I have given to the cotirt and jury as to the difference in the point of elevation is a surmise from simply an inspection and examination with the eye.” No measurements were made by the plaintiff or any witness for her.

The evidence for the defendant was as follows :

A civil engineer was sent to examine the defect after the accident ; by his actual measurements one section at the joint ran from If to If'inches higher than the next section; at the edge small pieces were jagged or chipped off. Three other witnesses and two policemen who took no measurements testified that the rise was about 1 to If inches. No one mentions any hole.

The verdict was against the weight of evidence. That of the ' plaintiff and her husband of her foot being cast in a hole under the sidewalk for several minutes, so that he had to pull it out in" order to lift her up, is an obvious exaggeration. There is no evidence of such a hole. Even the husband’s, that the top of one flag was “ about” 2,inches higher than the next one (which he says is a surmise) is inconsistent with it; and the wife does not describe the defect at all. The statement of the husband that one could get his foot “under where the edge of one met the edge of the other” is a' mere conclusion and not evidence. The other witness for the plaintiff mentions no hole. The plaintiff could have had measurements taken by a competent and trustworthy person, but didnót. The evidence of the civil engineer who did make accurate measurements should outweigh allsurmises and loose testimony, if credible, andthere is no reason to say it is not. The evidence that one flag appeared to be “ about ” or some ” 2 or 2$ inches higher than the other is consistent with the accurate evidence that the elevation was 1-J or If inches, and cannot be permitted to outweigh it. Moreover, the photograph shows that there was no hole at all.,

A verdict should have been directed for the defendant at the close of the case. The evidence in its entirety showed that the defect was too slight to base a charge of negligence on against the city. (Butler v. Village of Oxford, 186 N. Y. 444). Ho rule of perfection can be applied to a municipal corporation any more than to any- one else. This world is not perfect and the affairs of men are not held to such a rule. There are many places in the streets where one may stub his toe which are not negligent defects, and on private property, also.

The judgment and order should be reversed.

Rich, J., concurred.  