
    ELLEN BULLOCK, Appellant, v. THE MAYOR, &c., of the City of New York, Respondents.
    Negligence.—Sidewalks, unpaged.—Stepping stones.-—Duty of city as to.
    
    Assuming that the city is bound to treat an unpaved sidewalk as if it were a part of the highway, yet its allowing stepping stones placed therein by third persons to remain, they presenting the appearance of stepping stones, and there being no non-apparent danger in their form or their distance from each other, and there being nothing to lead to the antici-' pation of their being or becoming unsafe, violates no duty it owes to, and does not charge it with negligence as to, one who had used the stones with safety knowing their character.
    
      
      Decided, December 1, 1884.
    Before Sedgwick, Ch. J., and Van Vorst, J.
    Appeal from a judgment dismissing the complaint: •
    In 1879, the grade of the Third avenue, in Hew York City, at and about One Hundred and Thirty-ninth street, was changed to an elevation higher than that of the intersecting streets, and subsequently the work of raising Third avenue to the new grade, and of making approaches to the avenue on both sides in the intersecting streets was undertaken. In order to make the approach to Third avenue through One Hundred and Thirty-ninth street, the street was filled in for about 300 feet easterly from Third avenue, and such flagging as was on the north side of the street was taken up in the course of the work. The work done upon One Hundred and Thirty-ninth street was only to make an easy approach for vehicles through that street to the avenue, but did not include the grading or paving of the street, which was left without sidewalks, and unflagged. When snow and rain came, the street was muddy, and pieces of flagging, which remained from the former sidewalk, were laid down by citizens and persons using the street at irregular distances as stepping stones. Such pieces of flag stones were put at the place in question to enable travelers thereby to get. over a very muddy place.
    On the night of June 18, 1881, the plaintiff started from her house at the corner of Alexander avenue and One Hundred and Thirty-ninth street to go to a shop on Third avenue. She passed safely along the sidewalk, until she came to that part in front of the fence, where she tripped on one of the stones and fell, and received the injuries to recover damages for which this action is brought.
    At the close of plaintiff’s case defendants’ counsel moved to dismiss the complaint on the ground that no negligence on the part of the city had been shown. The trial judge ruled: “There is no evidence in this case of any negligence on the part of the city, unless the mere fact that the city allowed those stepping stones to remain there, which the citizens had placed there for their own convenience, is evidence of such negligence. I think it is not,”—and dismissed the' complaint. From the judgment entered upon said dismissal plaintiff appeals.
    Other facts appear in the opinion.
    
      Charles P. Miller,
    
    attorney and of counsel for appellant, upon the points decided, urged :—A strong case of negligence against the defendant was made out (Saulsbury v. Ithaca, 94 N. Y. 27; Clemence v. Auburn, 66 Ib. 334; Evans v. Utica, 69 Ib. 166 ; Todd v. Troy, 61 Ib. 506 ; Driscoll v. Mayor, &c., 11 Hun, 101; Darling v. Mayor, &c., 18 Ib. 340 ; Thomas v. Mayor, &c., 28 Ib. 110).
    It is of no importance that the condition of the sidewalk resulted from a public improvement. The street was left open for travelers, and it was incumbent on the defendants to keep it safe. If the defendants did not want to have the sidewalk repaired until they should see fit to finish the projected improvements, they should have closed it up, and not left it as an avenue of public travel.
    The court, in dismissing the complaint, seems to have been misled by the fact that the “citizens ” had placed the stones in the sidewalk ‘ ‘ for their own convenience. ” That fact could only raise the question of notice, and the evidence shows that the condition of the sidewalk, above described, had existed for a long time before the accident, probably since 1879.
    
      E. Henry Lacombe,
    
    counsel to the corporation, and D. J. Dean, of counsel for respondents, as to the points decided, urged :—As to the plaintiff’s contention, that the city was negligent in allowing the flag stones to .remain on the walk, defendant argues : The stones in question served the purpose of enabling passers to keep out of the mud, and did not render the walk any less safe than it would have been if the stones had not been there. To allow a series of flat stones, placed upon the surface of an ungraded, unfinished street, by neighboring residents as stepping stones, to assist travelers to keep out of the mud, to remain in such a street while it remained unfinished, cannot be deemed to be negligence. It was not wrong for the neighboring residents thus to facilitate themselves in the use of the street, and therefore allowing the stones so placed in the street to remain cannot be deemed wrongful or negligent on the part of the city. In the unfinished state of the street, public travel therein was not invited, and was not ordinarily or reasonably to be expected. To use reasonable care for the safety of the ordinary and expected travel of the locality, is the measure of the defendant’s duty in relation to a finished street, where the public travel is invited (McMahon v. 2nd Ave. R. R. Co., 75 N. Y. 231; Ring v. Cohoes, 77 Ib. 86).
    Reasonable care for the expected travel upon an unfinished, unpaved street, clearly, will not require the city to remove flat stepping stones, which the neighboring residents have placed on its surface to enable them to cross a muddy place.
   By the Court.

Sedgwick, Ch. J.

The issue in this case does not concern the duty of the city towards the plaintiff to pave the sidewalk. It concerns the duty of the city to keep the highway reasonably safe for the use of the plaintiff. On the testimony, the sidewalk, before the stepping stones had been placed upon it, was not dangerous. At certain times it became muddy, and perhaps, it may be granted in a certain sense, impassable; that is, the shoes and feet of any one who passed over it then would be dirtied or wetted. In such case, the obligation of the city could not be extended further than to respond in damages, because the street was impassable as for the wetting and muddying of the feet. What I am now saying assumes that the city was bound to treat the sidewalk as if it were part of a public street or highway. Third persons, without the authority of the city, placed in the sidewalk pieces of flagging stone, one foot and a half a part, so as to allow persons who did not choose to walk in the wet part, to step from one of these stones to another, and thereby to avoid the muddy places. These had remained on the sidewalk long enough to give rise to a presumption of notice to the city of the facts, or of negligence in not taking observation of the facts. The immediate question is as to the duty of the city to remove them. The duty is of a relative kind, and to enable the plaintiff to recover she must show that it was a duty as to her. I am of opinion that the proof shows that the arrangement of the stepping stones was not dangerous to such persons as would know or see the character of the arrangement. They 'perhaps might be to another class, say of citizens generally, who might have no reason for believing that the stones were not a part of a regular pavement of the ordinary fashion. But stepping stones are not of themselves dangerous. They are a common device well known and safely used, if not unsafely placed. If they present the appearance of stepping stones, so that one approaching them will know what they are, it would not be imprudent to allow them to remain down for use, unless at least there was some non-apparent danger, in the form of the stones or then distance from each other. The plaintiff’s own experience is a practical test of these things. She had before, on several occasions, used these stones, knowing their character, and had safely passed. They presented the appearance of safety and in fact were safe. There was nothing that led to an anticipation of their becoming or being unsafe. The only thing to show that they did not present the appearance of safety, or were not safe, so far as plaintiff’s proof went, was, that in stepping from one stone to another, her foot did not reach the latter and so she fell. There is no proof to show that that was from any defect in the arrangement, for the proof is that they were but about eighteen inches apart, which is the length of but a short step. She affirmatively testifies that in stepping, or jumping as she called it, she miscalculated the distance between the stones. There was nothing to show that the city had notice of any thing that was likely to lead to such a miscalculation, or that the arrangement was likely to lead to it.

In another aspect of the case, if the defendant’s negligence is not denied, the facts that have been noticed would show that the plaintiff contributed to the injury by her own negligence. But for the reason given by the learned judge below, I am of opinion that the complaint should have-been, as it was, dismissed, and that the judgment should be affirmed, with costs.

Van Voest, J., concurred.  