Maria McHugh, Respondent, v. Inter-State Paving Company, Appellant

Maria McHugh, Respondent, v. Inter-State Paving Company, Appellant. Second Department, October 11, 1907. Negligence — injury on street torn up for paving — contributory negligence. A plaintiff suing a paving company for injuries received at night by stepping into a trench’ during the construction of a pavement, who testifies that she knew the place was torn up but did not “mind anything” and walked “a' little carefully,” fails to show freedom from contributory negligence. Knowing that the street was torn up she had no right to assume that there were no holes or defects and was required to pick her steps. Appeal by the defendant, the Inter-State Paving Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 11th day of December, 1906, upon the verdict - of a jury for $1,000, and also from an order entered in said clerk’s office on the lltli day of December, 1906, denying the defendant’s motion for- a new trial made upon, the minutes, with notice .of an intention to bring up for review upon sucli appeal an intermediate order made on the 7tli day of December, 1906, during the trial of the action. Edward C. Rice, for tlie-appellant. Leonard J. Reynolds [Christian J. Rode with him on the brief], for the respondent, [MAJORITY — Gaynor, J.:] Gaynor, J.: ■ .The defendant was repairing Btishwick avenue under a contract with the city. The old pavement and the curb stones had been torn up, and' this w^s the condition at the corner of, Coopeb street where the plaintiff claims to have been hurt. The street was littered with . material.' The plaintiff testified in answer to her counsel: I knew that the ¡hace was pulled up pall the,stones and everything was pulled up; all the stones and the curbs'were strewn up on. the sidewalk.” She came through the litter across Bushwick-avenue to get back toiler home in Cooper street. Ap she went to step up from the street to the sidewalk she stepped into the trench or line where the curb had,set.before it was taken up, and hurt herself.-' It Was about si^c inches' wide and a foot deep. Although she knew the curb had been taken up, and saw it, lying along the sidewalk, she did not take the necessary, care to keep' out of. the place where it had set. Being asked by her counsel If she took notice of where she was going and how she- was stepping she answered, “ Ho, I just walked careful, for' I knew the place was torn -up, you know. I didn’t mind anything. Q. .You said you walked carefully? A. A little carefully, yes.” This is all there is oh that head. It falls far short of showing that she exercised the care required by law. Knowing that the street. was pulled up and littered,-she had to prove that she exercised extra ' examination and care. The rule that she might presume there were-no holes or. defects did not apply. The. law required her literally to pick her steps. It was night, but the street was lighted with electricity. A verdict should have-been directed for the defendant. ■ The judgment should be reversed, Woodward, Jems, Hooker and Rich, JJr, concurred. Judgment and order reversed and new trial granted*-costs to abide the event..