Margaret Powers, Respondent, v. The City of New York, Appellant

Margaret Powers, Respondent, v. The City of New York, Appellant. Second Department, October 11, 1907. Municipal corporations — negligence — defective sidewalk. A municipality is not liable as a matter of law for injuries received from a hole in a flag sidewalk three or four inches deep, twelve inches long and six inches wide, for injury therefrom cannot be reasonably anticipated; but where such depression is of this or greater depth and the hole, so small or of such a character that a pedestrian’s foot is liable to become fastened therein or caught under, its edge, or where the irregularity is an abrupt upward obstruction above the general level of an even sidewalk, the presence of which would not be anticipated, the question of negligence is for the jury. Appeal by the defendant, The City of New Yorb,-from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Bichmond on the 1.6tli day of March, 1906, upon the verdict of a jury for $600, and also from an order entered in said clerk’s office on the 22d day of March, 1906, denying the defendant’s motion for a new trial made upon the minutes. , Proceeding westerly on the northerly side of St. Mark’s place in the borough- of Bichmond, the plaintiff-broke her leg by stepping into a hole in the sidewalk. The sidewalk wás composed of flag stones, one of which, at the point where the plaintiff was injured, had been partly broken by the driving of wagons across, the sidewalk at that point. The view of the evidence most favorable to the plaintiff establishes that the hole was between three and four inches deep, twelve inches long and about six inches wide. The condition had existed between six and fourteen years. There was no evidence of any prior accident at that place, save the testimony of one of the defendant’s witnesses, that he himself once tripped over that place. Royal E. T. Riggs and Theodore Connoly [William B. Ellison with them on the brief], for the appellant. Frank H. Innes, for the respondent. [MAJORITY — Hooker, J.:] Hooker, J.: We are inclined toehold, as matter of law,-that danger was not reasonably to be anticipated from the presence of the hole in which the plaintiff was injured, and hence the defendant is not liable. In Butler v. Village of Oxford (186 N. Y. 444), the leading cases in this State dealing witli irregularities in sidewalks of substantially the size of the one which caused the plaintiffs injury were carefully reviewed. It seems, generally (1), that an irregularity of this size, which is in the form of a depression, is such as not, reasonably to suggest danger; but (2), on the other hand, where the depression is of this or greater depth, and the hole is .so small, or of. such a character that a pedestrian’s foot is liable to become fastened in tip' hole or caught under its edge, or where the, irregularity is an abrupt upward obstruction above the general level of an eve , sidewalk, whose presence would not in the ordinary use of the st- dt be anticipated,. a question of fact is presented as to the defendant’s negligence; (See cases cited in the Butler case.) • In our opinion, the hole which caused the plaintiff’s injury falls in the first classification. The judgment should be reversed. Jenks, Gaynor, Rich and Miller, JJ., concurred. Judgment and order reversed and new trial granted, costs to abide the event.