
    George Brewer, Respondent, v. The City of New York, Appellant.
    
      Negligence — injury from a broken flagstone in a city sidewalk.
    
    Where a pedestrian in stepping from a crosswalk to the sidewalk in a city trips and falls over a broken flagstone, a piece of 'which nearest the gutter had been removed so as to leave a depression six by four inches in surface dimension, and about two inches deep, and it appears that such defective condition had existed for a length of time sufficient to justify the inference that the city had notice of it, and to call for repair to the sidewalk before the accident took place, and it also appears that prior to the time that this accident occurred other people had fallen into the hole or tripped over the defective walk, and that at the time of the accident the place where the person fell was so dark, the neighboring street lamp not being lit, that after falling it was with difficulty that he found his hat, a case of liability on the part of the city is established.
    The erroneous admission of evidence by which the plaintiff showed the condition of the sidewalk after the accident by the testimony of a witness who saw it two years thereafter, considered not to justify the granting of a new trial where there was no dispute but that the condition of the sidewalk was the same at the expiration of such two years as at the time of the accident, or as to the extent and character of the defect.
    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 New York on the 13th day of January, 1898, upon the verdict of a jury for $1,500, rendered by direction of the court, and also from an order entered in said clerk’s office on the 9th day of February, 1898, denying the defendant’s motion for a new trial made upon the minutes.
    
      Theodore Oonnoly, for the appellant.
    
      Ilenry M. Qoldfogle, for the respondent.
   O’Brien, J. :

The action ivas brought to recover damages for injuries occasioned to the plaintiff on January 13, 1896, in consequence of the alleged neglect of the defendant to keep the street at the southeast corner of One Hundred and Third street and Park avenue in repair, and because of the defendant’s maintenance of the sidewalk in an unsafe and dangerous condition. On the night in question, while the plaintiff was passing from the west to the east side of Park avenue, through the tunnel there existing, and while stepping from the crosswalk to the sidewalk, he tripped and fell over a broken flagstone, part of which was raised about two inches over the grade of the walk from the grade of the curbstone. The stone, constituting part of the sidewalk, was split all around, and a piece nearest the gutter had been in some way removed, so as to leave a space, according to the surface dimensions of the hole, six by four, and about two inches deep, into which space the plaintiff, while stepping from the crosswalk on to the sidewalk, placed his foot and tripped, striking on his head, and causing the injuries for which a recovery was sought.

It was conceded that this defective condition had existed for such a length of time as to justify the inference that the city had notice, and for such a length of time as to call for repair to the sidewalk before the accident took place. It was further established that thi§ defect in the highway had existed as far back as November, 1894, and that prior to the time when the plaintiff met with the accident, other people had fallen into the hole or tripped over the defective walk. It further appeared that on the night this accident occurred, the lamp on the southeast corner of the avenue and under the tunnel which ran along Park avenue, was not lit, and that the place where the plaintiff fell was so dark that, after falling, it was with difficulty he was able to find his hat. Upon this evidence, the single question presented was as to the liability of the city.

It is contended that, under the law laid down by the Court of Appeals in Beltz v. City of Yonkers (148 N. Y. 67), there was no liability on the part of the city for the 'existence of the defect in question. In that case the syllabus, correctly summarizing the opinion of the court, states: “A municipal corporation must guard against such dangers in its streets as can or ought to be anticipated or foreseen in the exercise of reasonable prudence and care, but it is not chargeable with negligence in omitting to repair a defect in a street, so slight that no careful or prudent man would reasonably anticipate any danger from its existence. A municipal corporation is not chargeable with negligence when an accident which, according to common experience, was not likely to happen, happens to a traveler by reason of some slight defect in a street, from which danger was not reasonably to be anticipated — such, e. g., as a depression in the middle of a flagged sidewalk the depth of the thickness of the surrounding flagging, caused by the removal of a small broken piece of stone, and which had existed for several years without any accident resulting therefrom.”

The distinction between that case and the one at bar is marked. It there appeared that no accident had theretofore happened from the use of the street in the condition in which it was when the plaintiff was in jured, while in the case at bar we find, not only that the street -was allowed to remain out of repair in a part of the city where property is improved by dwelling houses all about it, but that the sidewalk was allowed to remain in such defective condition after people had been injured while passing over it, one of the witnesses testifying that she had seen a young lady fall there, “go right in that hole and went right down.” We think, therefore, that the trial judge was correct in holding that the rule laid down in the Beltz case did not apply.

The rule which, upon the facts, should apply, is to be found in the case of Smith v. Mayor (17 App. Div. 438), wherein this court held, in an opinion by Mr. Justice Ingbaham : “The law imposes upon municipal corporations the duty of guarding against such dangers as can or ought to be anticipated or foreseen in the exercise of reasonable prudence and care; and the only question here is whether there was evidence that would sustain a finding of the jury that the city had neglected its duty in regard to this street, and whether the injury complained of was the result of such neglect.” In that case, as here, it was shown that the defective condition of the highway had existed for a long time, and that another accident had occurred there a short • time previously. As therein further said : “ The duty of inspecting the streets is as much a part of the duty of a municipal corporation as is that of repairing a street when such an inspection has revealed a condition requiring repair; and if it appears either that the corporation knew of the defect- and neglected to repair it, or neglected to inspect and thus failed to know its condition and to make the repair, there is negligence that will sustain a recovery.”

There is no foundation for the suggestion of contributory negligence on the part of the plaintiff. The only remaining question relates to a ruling upon evidence, permitting the plaintiff to show the condition of the sidewalk after the accident, by the testimony of a witness who saw it two years after. Evidence of this character has been so frequently condemned that it is unnecessary to do more than say that it was incompetent. In this case, however, it was perfectly harmless, for the reason that there was no dispute that the condition of the sidewalk was the same then as at the time of the accident, or as to the extent or character of the defect; and taken in connection with the concession made on the trial by the city that it had notice for a sufficient length of time to call for the repair of the sidewalk before the accident took place, the testimony complained of could not in any way have affected the result. The verdict, moreover, cannot be regarded as excessive.

We think, therefore, that, notwithstanding the error made in the ruling upon evidence, the judgment appealed from should he affirmed, with costs.

Van Brunt, P. J., Patterson, Ingraham and McLaughlin, JJ., concurred.

Judgment affirmed, with costs.  