Lucinda Conley, Respondent, v. Village of Hudson Falls, Appellant

Lucinda Conley, Respondent, v. Village of Hudson Falls, Appellant. Third Department, May 6, 1914. Municipal corporation •— liability of village for injuries sustained, by stumbling over a water gate projecting above the surface of the sidewalk — evidence. Where, in an action against a village for personal injuries sustained by stumbling over a water gate projecting about two inches above a cement sidewalk and used for the private purposes of the abutting owners, it appears that the water gate had been in this position for a period of fifteen years, and although aside from the testimony of a son-in-law of the plaintiff that he had stumbled over the same without falling, there was no evidence that any one had ever encountered the obstruction or suggested that it was dangerous, a judgment for the plaintiff- should - be affirmed. Appeal by the defendant, Village of Hudson Falls, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of -the clerk of the county of Washington on the 17th day of January, 1914, upon the verdict of a jury for $500, and also from an order entered in said clerk’s office denying defendant’s motion for a new trial made upon the minutes. John Van Valkenburgh, for the appellant. W. E. Young, for the respondent. [MAJORITY — Woodward, J.:] Woodward, J.: A very close question of law is involved in this appeal, and one which might be changed by comparatively trifling circumstances. The plaintiff, a woman sixty-one years of age, stumbled over a water gate in a cement sidewalk in the defendant village, receiving injuries for which the jury has awarded a verdict of $500. This water gate appears to have projected above the sidewalk about two inches. It was within one foot of the curb and about six feet from the other side of the walk. The evidence showed that this water gate had been in this same position, and with a like projection, for a period of fifteen years, and, aside from the testimony of a son-in-law of the plaintiff that he had stumbled over the same without falling, there was no evidence that any one had ever encountered this obstruction, or that any one had ever suggested that it was in any manner dangerous. It merely appears that this obstruction existed apparently for the private purposes of the abutting owners, and that the street was a much-used highway, and the municipal authorities may be held to be liable for permitting such an obstruction for private purposes where they would not be liable if the obstruction was shown to exist as a necessary part of some public utility. The case cannot, we think, be distinguished from that of Preiss v. City of New York (69 Misc. Rep. 492), and it is very much in line with that of Archer v. City of Mount Vernon (57 App. Div. 32), and we are inclined to the opinion that under all of the circumstances it was properly submitted to the jury, and that the verdict ought not to be disturbed. The judgment and order appealed from should be affirmed, with costs. Judgment and order unanimously affirmed, with costs.