
    BROWN, Respondent, v. CITY OF NEW YORK, Appellant.
    (Supreme Court, Appellate Division, First Department.
    January 11, 1907.)
    Appeal from Trial Term, New York County. Action by William Brown against the City of New York. From a judgment in favor of plaintiff, defendant appeals. Affirmed. Theodore Connoly, for appellant U. Washbourue Smith, for respondent
   PER OTJRIAM.

Judgment and order affirmed with costs. Order filed.

INGRAIIAM, 3.

(dissenting). This action was to recover for personal injuries snstained by the plaintiff by tripping on a flagstone on the sidewalk on Second avenue, between Thirty-Third and Thirty-Fourth streets, in the city of New York. The plaintiff testified that he was injured on the 24th day of October, 1002, at about half past 0 o'clock in the morning, in front of No. 611 Second avenue, between Thirty-Third and Thirty-Fourth streets, in the city of New York; that at the time he was walking north on Second avenue, going to work; that there were several persons walking on the avenue, and in order to pass them he turned to the right, tripped, and fell over a stone on the sidewalk; that the sidewalk at this point was flagged, but the stone on which he tripped was lying on the flagging, was about 2 feet wide, 2i/~ feet long, and 3 inches thick, and was a foot or more from the curbstone; that be broke his leg 4 or 5 inches from the ankle; that he did not see the'stone before he stumbled over it; that he was hurrying to get to work by 7 o'clock. There was also proof that this stone had been in this location for over two weeks. On behalf of the defendant it was proved that the sidewalk in front of Nos. 609, 611, and 013 Second avenue needed repairs; that prior to October 24, 1902, a firm of contractors were employed by the owners of the abutting property to make the necessary repairs; that a contract was made about November 4tb, and the repairs were finished about the 15th of November; that these contractors were working in this immediate vicinity during the whole of the month of October. The toatractors testified that before they ripped up the sidewalk two flags were crooked, but the rest of the sidewalk was in fair condition; that the new sidewalk was made of asphalt, and the old stones were removed: Two of the police officers on the beat testified that several stones were broken, so that there was a slight depression, but there was not a loose flagstone on the sidewalk, and this was corroborated by other witnesses for the def end-ant. After the testimony was all in, the defendant moved to dismiss the complaint, upon the ground that the evidence would not justify a finding that the plaintiff was free from contributory negligence, or that the defendant was negligent. This motion was denied, aad the defendant excepted. Thereupon the court submitted the question to the jury, who found a verdict for the plaintiff for $2,000, and from the judgment entered thereon this appeal is taken.

I have considerable doubt as to whether the evidence justified the finding that the defendant was negligent.. The sidewalk having become out of repair, the owner of the property had determined to replace the flagging with asuhalt pavement. A firm of contractors had been employed to do the work, had taken the measurements, and shortly after the accident made a contract to do the work. As the work of ripping up the old pavement did not commence until after the accident, a flagstone on the pavemenf. could not have come from the existing pavement, and the new pavement was not tO be if fiagstones, but an asphalt pavement. At the bime of the accident it appeared that workmen were engaged in repairing the building in front if which the plaintiff fell. It was primarily the tuty of the owner of the adjoining property to keep in repair the sidewalk in front of `the premises, and, I think, in considering the dvty' imposed upon the defendant, there is distinction between the roadway and the part of the street maintained by the city and the sidewalks that ft is primarily the duty of the Owners of the' abutting property to keep in repair. Of course, the city is bound to see to it that the sidewalks is well as the streets are reasonably safe for the public; but it is manifestly impossible for a municipality to prevent any obstruction from being placed upon a sidewalk while an adjoining building is in course of repair. Whatever the obstruction was that caused the plaintiff to fall, it would seem a reasonable conclusion that this condition was caused by the repairs being made to the building, and I do not think that it can be said that the city is negligent because the owners of the building obstruct the sidewalk while making repairs to an nbntting building and the sidewalk. The primary duty of the city in regard to the streets and their general condition is to make the necessary repairs so as to keep the streets in a safe condition, and for a neglect of that duty the municipality is liable. When the owners of the property undertake to repair their premises and the sidewalk in front thereof, the duty of the city during such temporary repairs is somewhat different in relation to the sidewalk and the roadway; the obligation of the city therely being to use reasonable care under the conditions as they from time to time exist. I do not think that the mere fact that the sidewalk is more or less' obstructed for a period of two weeks while the work upon the adjoining premises was going on, imposes upon the city a liability for injury caused by such obstruction. However, as the defendant does not take the point that there was no evidence of contributory negligence, and as I think that the evidence as it stands does not justify a finding that the plnintiff was free from contributory negligence, it is not necessary to determine the question. According to the plaintiff's testimony, he was walking along this sidewalk in a hurry to `get to his work. He was familiar with this locality, passing it almost every morning. As he came in front of this building he saw persons approaching, and turned to the right, stumped his toe upon a stone, and fell. This stone was about a foot and a half from the curb. It was bright daylight, nothing to prevent his seeing the stone, and if he had looked where he was going when lie turned towards the curb he must have seen it. He does not testify whether or not he looked to see u'here he. was going, or if there was any obstruction on the sidewalk, but he says he did not see the stone, and the inference must be that, as he did not see it, he did not look. There was no evidence that there was a crowd upon the sidewalk, or that anything distracted his attention, or prevented him from seeing the obstruction, whatever it was, and under such circumstances the case seems `to be controlled by the case of Whalen v. Citisens' Gaslight Co., 151 N. Y. 70, 45 N. E. 363. In that case the plaintiff, while walking along the street, tripped on a fiagstone, and sustained injuries for which he sought to recover. It appeared that the defendant was engaged in laying a gas pipé across the sidewalk in Court street, in the city of Brooklyn, connecting its gas main in that street with the premises on the comer; that it had obtained the consent of the city authorities to remove the flagstone from the sidewalk, and it caused a flagstone next to the building to be removed and placed upon an adjoining flagstone upon the walk; that the space between the two openings was about five feet; that while the walk was in this condition the plaintiff fell upon it, sustaining the injuries to recover for which the action was brought. The 'accident happened about a quarter before 11 o’clock in the forenoon. The plaintiff testified that her eyesight was very good, and that she did not notice the flagstone or the excavation beside it as she went near the place where she fell; that she was looking along the street as she walked. In holding that the plaintiff was guilty of contributory negligence the court said: “It is the well-settled law of this state that in actions of this cliaracter the absence of negligence on the part of the plaintiff contributing to the injury must be affirmatively shown by the plaintiff, and that no presumption of freedom 'from such negligence arises from the mere happening of an injury, * * * If this law is to be recognized and fol.lowed, we are unable to see how this judgment can be sustained, for to hold otherwise would practically overrule and annul the rule of con-tributary negligence. As we have seen, it was a bright day, and about 11 o’clock in the forenoon. The obstacle over which the plaintiff fell was a large flagstone over four feet in length and three in breadth. There was nothing to obscure her vision. Her .eyesight was good, and she could see as she was walking along the walk. It iá not pretended that anything occurred that momentarily obstructed her vision, and it is difficult to conceive how she could have avoided seeing the obstacle, unless she was heedlessly proceeding in utter disregard of the precautions usually taken by careful and prudent people. * * * The presumption which a wayfarer may indulge that the streets of a city are safe, and which excuses him from maintaining a vigilant outlook for dangers and defects, has no application where the danger is known and obvious.” I do not find that this case has been questioned or in any way overruled. The same principle was applied in Strutt v. Brooklyn & Jt. B. R. Co.; 18 App. Div. 134, 45 N. Y. Supp. 728, and in Dubois v. City of Kingston, 102 N. Y. 219, 6 N. E. 273, 55 Am. Rep. 804, where the court say: “It may also be remarked that the evidence of the plaintiff tended strictly to show that he was chargeable with negligence which contributed to the injury. There was abundant room for him to pass by the stepping stone without, running against it. A very small portion of the end of the stone upon which he fell obstructed the sidewalk; and being well ac'-uainted with the locality, had he been careful ,n exercising his faculties, he could have avoided the accident. In not doing so he was clearly negligent.” It is not claimed here that any other person in the street obstructed the plaintiff’s view. His testimony is that, seeing persons appreaching, he turned to the right towards the curb, and thus brought himself in proximity with this alleged obstruction, which was a foot or a foot and a half from the curb. I can see no distinction between this case and the Whalen Case, which seems to impose upon a person some care when walking along a sidewalk to look out for obstructions; and, in the absence of some evidence to show that an effort, at least, was made to see the obstruction, and when, if such effort had been made, the obstruction would have been apparent and could have been avoided, a verdict that a person injured was free from contributory negligence cannot be sustained. It follows that the judgment and order appealed from should be reversed, and a new trial ordered, with costs to the appellant to abide the event. McLAUGHLIN, J., concurs. ...... _  