
    Christine Beltz, Resp’t, v. The City of Yonkers, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 1, 1893.)
    
    1. Negligence—Municipal cobfobations—Notice.
    Where the sidewalk of a city has been broken for four years, and was sufficiently dangerous to attract attention, it is sufficient to charge the city with constructive notice of the existence of the defect in the sidewalk.
    8. Same—Conteibutoby.
    A party has the right to walk along a street in the expectation that the city has performed its duty, and that the sidewalk is safe.
    Appeal from a judgment entered upon a verdict, and from an order denying a motion for a new trial upon the minutes of the court.
    
      James M. Hunt, for app’lt; John'F. Brennan, for resp’t.
   Dykman; J.

This is an action for the recovery of damages resulting from injuries sustained by a fall upon a sidewalk. At the place where the plaintiff fell the sidewalk was eight feet wide, and consisted of two rows of stone flagging, each row being four feet wide. A small triangular piece had been broken off of the outside corner of two of the flag stones of the inside row of flagging where they joined the outside row. The piece broken off from each stone was about thirteen inches by five on the longest sides, and tapered to a sharp point. When both pieces were out they left a hole twenty-six inches long- on the longest side, five inches wide in the widest place, tapering to a point each way, and two inches deep on the day of the accident. The hole was in the middle of the walk, and had remained there for about four years

The evidence tended to show that the plaintiff was walking over this sidewalk on a rainy morning in February, 1893, carrying an umbrella, when she stepped into this hole and fell, and broke both bones of her leg.

There was but little dispute respecting the facts, and the jury rendered a verdict in favor of the plaintiff for five thous- and dollars.

From the judgment entered upon the verdict, and order denying a motion for a new trial upon the minutes of the court, the defendant has appealed to this court.

So we have presented the questions usually involved in an action sounding in negligence.

In respect to the negligence of the defendant, however, the evr dence was sufficient to charge it with constructive notice of the existence of the defect in the sidewalk. It had been broken for four years, and was sufficiently dangerous to attract attention. When the earth was soft from moisture, the foot of a person who stepped into the open space would sink into the ground, and in lifting it out, it might become entangled or wedged between the stones, as the foot of the plaintiff doubtless did.

The exercise of proper vigilance and care by the officers of the municipality would have discovered that danger had caused the reparation of the walk.

We conclude, therefore, that the evidence and the circumstances disclosed justified the jury in convicting the defendant of negligence.

In relation to the contributory negligence of the plaintiff, we find no evidence of such carelessness as would have justified the trial judge in taking the case from the jury, and convicting the plaintiff of negligence as a matter of law. The plaintiff had the right to walk along the street in the expectation that the defendant had performed its duty and that the walk was safe.

She walked in an ordinary manner, and we think the jury was justified in finding her free from carelessness.

In relation to the damages we do not find them so excessive as to justify our interference.

It is to be said respecting actions against municipal corporations, which relate to defective streets or sidewalks that they are usually severe. It is practically impossible to maintain the streets and walks in a perfect condition. Flagstones become depressed or broken. The surface becomes uneven by the settling of some stones more than others, the earth of the pavement in the traveled portion of the streets sinks in places sufficient to break a wagon or injure a horse, even when the variation is slight. There is no provision for constant inspection and usually the public funds provided are inadequate to pay for repairs which would be sufficient to avoid all accidents. Yet the courts can administer no relief so long as questions of negligence are to be submitted to courts or juries; they must be decided upon the evidence and the law applicable thereto without regard to consequences.

Our conclusion is that the judgment and order from which this appeal is taken should be affirmed, with costs.  