Marie R. Menzies, Respondent, v. Interstate Paving Company, Appellant

Marie R. Menzies, Respondent, v. Interstate Paving Company, Appellant. Bvidenee—proof insufficient to sustain a verdict for a plaintiff, claiming to have been injured on a defective crosswalk. A paving company, which is responsible for the existence at the intersection of two city streets of a defective crosswalk, is not liable in damages for personal injuries sustained by a person who falls upon the street in close proximity to the defective crosswalk, where such person and her witnesses are unable to shed any light upon the cause of her fall, or to testify that such fall was due to the defects in the crosswalk. Appeal by the defendant, the Interstate 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 15th day of April, 1904, upon the verdict of a jury for $3,500, and also from an order entered in said clerk’s office on the 18th day of April, 1904, denying the defendant’s motion for a new trial made upon the minutes. M. W. Van Auken, for the appellant. Ferdinand E. M. Bullowa, for the respondent. [MAJORITY — Miller, J.:] Miller, J.: The plaintiff has recovered a judgment for personal injuries, alleged to have resulted from-a fall caused by a defective sidewalk or crosswalk at the intersection of two city streets. It appears that the defendant paving company was engaged in tearing up the street, preparatory to paving, pursuant to a contract with the city; that the stones forming the crosswalk had been loosened and somewhat displaced, and. that a hole two and one-half feet in depth from the surface of the sidewalk had been formed in the gutter at or near the place where the plaintiff fell. ■ But it does not appear that-the plaintiff’s fall was occasioned either by her stepping into this hole or stumbling against the loosened stones. Both she and her husband, who was with her, testified that they did not know what caused her to fall. The record discloses a fall in close proximity to defects in the crosswalk, with the plaintiff in court and utterly failing to shed any light on the cause of such fall. T-lie fact that a defective condition of the street might have caused the accident is not sufficient. If the plaintiff could not account for it, certainly a jury should not be permitted to speculate, and without some evidence showing, more than a mere possibility, it was error to submit the: case to the jury. The judgment and order should he reversed, and a new trial ■granted, costs to abide the event. Hirschberg, P. J., Bartlett, Jenks and Rich, JJ., concurred. Judgment and order reversed and new trial granted, costs to abide the event. ‘