
    Nora Lowe McKee, Respondent, v. The City of New York, Appellant.
    Second Department,
    December 30, 1909.
    Municipal corporations — negligence — injury by defect in street — constructive notice.
    Before .a city can be charged with negligence in failing to repair or safeguard a defect in a public street, it must have actual or constructive notice, and a reasonable opportunity thereafter to repair or safeguard the defect.
    Where a depression between the tracks of a street railroad was caused by a heavy , rain storm lasting nearly twenty-four hours, and a pedestrian was injured by stepping into the depression only two or three hours after the rain had ceased, the city is not chargeable with constructive notice so as to be liable for negligence in failing to repair or safeguard the defect,
    Hirschberg, P.- J., and Rich, J., dissented in part.
    
      Appeal by the defendant, The City of Mew York, from a judgment of the.Supreme Court in favor of the plaintiff, entered:in the office of the'clerk of the county of Richmond on the 20.th day of Movember, 1908, upon the verdict of a jury for $800, and also from an order entered in said clerk’s - office on the -11th day of Movember, 1908, denying the defendant’s motion for a new trial made upon the minutés.
    
      James D. Bell [Francis K. Pendleton with him on the brief], - for .the appellant.
    
      Samuel H. Evins, for the respondent.
   Jenks, J.:

The plaintiff recovered a judgment, against the1 city of Mew York for personal injuries due to negligence. In her attempt to cross over a public street in the borough of Richmond about 10 o’clock p. m. of July 30, 1905, she stepped into a “gully, hole or opening” and was injured. .This appeal is taken by the defendant.' The defendant requested the learned court, but-the court refused under exception, to instruct the jury as follows: “I ask your Honor to charge that if the jury shall find that the- hole or depression testified to by the plaintiff was occasioned by the rain storm which commenced on the night of July 29tli and terminated ón July 30th about half-past eight p. m., that they múst find a verdict for the defendant.” I think that this exception was well taken and is fatal. The alleged defect in the street was- between the car rails in the roadway.. It was described by the plaintiff and her witnesses as a gully or rut or ditch, about 12 to 16 inches in depth, and from 1Ó to 15. feet in length. The evidence clearly indicates that this alleged defect was Caused by the action of- rain water upon the surface of the street. A witness for the plaintiff who gave the most specific description' said that it was “ a ditch or rut, as would be formed by rushing water through macadam stones, which would be rough and irregular.” The liability of the defendant charged is its negligence in failing' to repair and to safeguard the defect. Before that liability can be established it must appear that the city had-notice, and a reasonable opportunity thereafter to repair: or to protect. ■ The plaintiff relied upon the rule of constructive notice. This rule is well expressed in Weed v. Village of Ballston Spa (76 N. Y. 336), as follows : “If it has continued such a length of time as to become notorious, and to justify the presumption that its existence was known to the agents of the corporation charged with the duty of keeping the streets in repair, notice will be presumed. (Requa v. The City of Rochester, 45 N. Y. 130; Diveny v. The City of Elmira, 51 id. 506; Hume v. The Mayor, etc., 47 id. 639.)”

Carlin, inspector of highways, called by the defendant, testifies that prior to July 30tli the condition of the street at this location was fair with the exception of the top being broken between the tracks — simply that the top dressing was washed off very little. Crilly, a foreman of the highway department, testifies that he had visited the street prior to July 30th once or twice daily; that its condition prior to July 30th was pretty fair; that there was no gully or holes in it such as had been testified to by the plaintiff. . Curry, a foreman in the department of highways, testifies that he was familiar with the condition of the street prior to July 30th; that it was in good condition and that he did not see any gully or hole existing on July 30th. Reed, a police officer, whose post covered this location, testifies that on July 30tli it was in good condition. Jones, another police officer, testifies that during the week preceding July 30th the street at this point was in fairly good condition — only worn by driving. Bently, another police officer, testifies that this point in the week preceding July 30th was in fairly good condition. The witness Carlin also testifies that he received a telephone message that there was a washout on Hyatt street, on the sidewalk, and that he went there at 8 o’clock on July 30th and found there was a washout on the sidewalk between the flag and the curb; that the roadway was in good condition on that morning and the condition of the roadway bétween the tracks was very bad. The witness Crilly testifies that he went to the point of the street on July 31st, in the morning, to repair a washout, and started in to do it with his gang of men. The defendant gave evidence, from the office of the local weather bureau, that there was a rain storm which commenced on July 29 th, about half past 7 p. m., and continued up to 9 o’clock p. m., with a precipitation of .24 of an inch; that on the 30th the rain storm began at 2 o’clock in the morning and rained lightly until 4 a. m. ; that between 2 o’clock and 4 o’clock a. m. there'was a fall of 1.84; that it commenced raining again about 3.50 p. m., stopped at 8 o’clock p. m., and it rained 1.59 inches, and that there was no rainfall from July 15th to- July 28th inclusive, except on the 23d, when there was .39 of an inch. The question of constructive notice is generally for the jury. . But if this defect was due to that rainfall which only ceased at- 8 p. m. or 8.30 p. m. and the plaintiff was injured within two or three hours thereafter, I think that there was not under the circumstances such an interval as-would have warranted a verdict, against the defendant for its negligence, either to repair this defect or to safeguard it. (Riley v. Town of Eastchester, 18 App. Div. 94; Dorn v. Town of Oyster Bay, 84 Hun, 510; Lowhouse v. City of Buffalo, 22 Wkly. Dig. 49, Gen. Term, 5th Dept., Smith, P. J., Barker, Haight and Bradley, JJ.; Stoddard v. Winchester, 154 Mass. 149; Blakeley v. City of Troy, 18 Hun, 169; Carroll v. Allen, 20 R. I. 541; Theissen v. City of Belle Plaine, 81 Iowa, 118; Elliott Streets [2d.ed.], § 626.)

I advise that the judgment and order be reversed and that a new trial be granted, costs to abide the event.

Burr and Miller, JJ., concurred; Hirsohberg, P. J., and Rich, J. , dissented on the ground that they deem the alleged error to-have been cured by the next request charged.

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