
    Dora. R. Henry, Respondent, v. The City of New York, Appellant.
    First Department,
    May 17, 1907.
    Negligence —■ injury caused by hole in city pavement — when municipality not liable.
    A municipality is not liable for inj uries received by á pedestrian by stepping into a bole in the sidewalk three to four.incbes deep aiid about two feet long and ■ eighteen inches wide, apparently caused from the-breaking off and sinking of' one corner of a flagstone, where it appears that the sidewalk had for a long time been in a necessarily disturbed condition, caused partly by adjoining excavations for a subway over which the city bad no control (which work was still going on), and partly by the construction of an adjoining building, and where the evidence that the particular hole had existed for any considerable length of time was meagre and unsatisfactory, and it did not appear that any other accident had happened in consequence of its existence.
    When it- appears that the plaintiff knew of the excavation and proceeded without more than ordinary care, she is chargeable with contributory negligence.
    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 6th day of July* 1906, upon the verdict of a -jury for $7,250, and also from an order entered in said clerk’s office on the 20th day of July, 1906, denying the defendant’s motion for a new'trial made upon the minutes.
    
      
      Royal JE. T. Riggs, for the appellant.
    
      Thomas L. Hughes, for the respondent.
   Scott, J.:

The plaintiff has recovered a verdict for the damages suffered by her in consequence of having stepped into a hole in the pavement on the easterly side of Broadway between Seventy-first and Seventy-second streets in the city of New York.

At that time the street was in great confusion. Broadway was excavated from curb to curb for the construction of the subway, and at this point the excavation extended several feet inside the curb line so that one line of flag stones had been removed and the . sidewalk partly excavated, a board fence having been erected between the excavation and . the unstable portion of the sidewalk. On this fence, on the side nearest the house line, red lanterns were hung during the night time about six or eight feet apart. The street and portion of the sidewalk had been excavated for at least two months before the accident, and.the excavation in the roadway had been going on for a much longer time. • On the other side of the sidewalk a large hotel or apartment house had just been erected and had been completed only a few months before.

As a natural result of the building operations which had been going on on the one side, and the subway construction which had been and still was going on on the other side, the condition of the walk liad become much disturbed and quite rough. The hole of which plaintiff complains appears to have resulted from the breaking off and sinking of one corner of a flag stone, and it is said to have been between three and four inches deep, about two feet long and about eighteen inches wide. Upon a former appeal judgment for plaintiff was reversed -because this court found that the evidence strongly preponderated in favor of the contention.of the city that, at the time the plaintiff claims to have been injured all the flag stones had been removed, and only a cinder path" left so that the. accident could not have happened as plaintiff says it' did.

. In the course of its opinion the court then said: Whether, in view of the necessarily disturbed condition of the street and walk incident to the building of the Doriltón Hotel and the construction of the subway/ a broken flagging causing a depression of from three to five inches in the walk,:was such a defect as permitted the submission of the question of defendant’s negligence to the jury, we do not feel called upon now to determine.” • (Henry v. City of NewYork, 110 App. Div. 886.)

A second jury has (although on scarcely more satisfactory evi- ■ dence) found a vérdict for the plaintiff, and has thereby necessarily found, that the defect of which she complains did, in' fact, exist.

It, therefore, becomes necessary to consider and determine the ques- . tion which the court declined to determine upon the former appeal.

The whole, subject of the liability .of a municipality for defects in .■ its sidewalks has recently been considered by the Court of. Appeals and a large number of cases reviewed.' (Butler v. Village of Oxford, 186 N. Y. 444.) In that case at the junction of a stone' . and dirt sidewalk the surface of the stone walk was higher than that ■ of. the dirt walk by about two' and one-half inches in the center, and by about five inches at the edge of the walk, and' it was held that this was tod slight a defect to sustain'an action' against the vib lage for negligence in behalf of a pedestrian who had stumbled over the projecting edge and been injured'. In the course of'the-opinion the general rule as to: the liability of a municipality for the condition of its streets was succinctly stated as follows: '“ It is not '■ an insurer and is not expected to maintain walks and 'streets in such an absolutely perfect condition as to render an accident impossible, "; but is expected to use reasonable care andprudence in detecting ■and, remedying any defect'which it might be fairly anticipated would be dangerous and liable to' cause an accident.” This statement of the law/ of course, needs no citation of authorities to establish it, and as pointed out by the Court of Appeals the difficulty which'frequently presents itself is in the application of this general-rule'to specific ca'ses, and as the court well- says, “ Each case must necessarily depend upon its particular features.” The significant facts in the present case are that the street had been for a long time ■ in a necessarily disturbed condition of a nature and character calcu-. lated to interfere greatly'with the integrity of the; pavement. It needs no 'evidence to inform us that the construction of a large building frequently and even generally results in much .damage,-to and disturbance of the sidewalk upon which it abuts, and the same is true of the subway excavation and construction, a work over ' which the city had no control or supervision. It imports no negligence or failure of duty on the part of the city that a piece' of one of the flag stones on the walk between the building and the subway trench should have been broken off and depressed below the surface of the surrounding pavement. It is also worthy of notice that the evidence that this particular hole had existed for any considerable length of time was but meagre and unsatisfactory, and that it did' not appear that- any other accident had ever happened in consequence of its existence, for as said in the • Butler case, above cited, the city authorities had a right to take into account and be influenced by the experience of the general public in using the sidewalk without mishap. A defect in the sidewalk similar,, to, and little, if any, larger- than that complained of in the present case, has repeatedly been held to be insufficient to charge a municipality with negligence. (Beltz v. City of Yonkers, 148 N. Y. 67; Hamilton v. City of Buffalo, 173 id. 74; Getzoff v. City of New York, 51 App. Div. 450; Corson v. City of New York, 78 id. 481.) The cases which seem to hold to the contrary are distinguish- ■ able as was clearly pointed out in the Butler Case (supra). What makes the present case a stronger one- for the defendant than any of those above cited is the fact that the work in the street which apparently produced or contributed to the disordered' condition of the sidewalk was still going on. It would certainly, have imposed an unreasonable obligation upon the city to have required it to follow up the subway work from day to day for the .purpose of detecting and repairing every slight break or defect that might be found on the sidewalks., Such a defect as the plaintiff complains of might indeed, as her experience shows, result in an accident, but it was not of such dimensions or character as to make an accident probable. We are, therefore, of the opinion that the evidence did not show _such a defect in the walk as justified the submission to the jury of the question of the defendant’s negligence. The evidence of the plaintiff’s freedom from contributory .negligence was also far from satisfactory. She knew that the subway excavation was going pn and that the street had been in more or less disorder for some time before the accident, notwithstanding this she seems to have proceeded on her way without any particular cafe and without any attention to her surroundings. Under the circumstances disclosed by the evidence as to the perfectly -obvious condition of affairs at or about the point at which the accident happened the plaintiff was bound to use more tlian ordinary care to avoid an accident. (Walsh v. Central, New York Tel. & Tel. Co., .176 N. Y. 163 ; McDonald v. Holbrook, Cabot & Daly Co., 105 App. Div. 90.) It does not appear that she fulfilled this obligation-

The judgment and order must he reversed and a new trial granted, with costs to appellant to abide the event.

McLaughlin, Houghton and Lambert, JJ., concurred; Patterson, P. J., concurred in result.

Judgment and order reversed, new trial ordered, costs to appellant to abide event. - \  