Dubois v. City of Kingston

• Decision Date: 13 April 1886
• Citation: 6 N.E. 273,102 N.Y. 219
• Parties: DUBOIS v. CITY OF KINGSTON.
• Court: New York Court of Appeals Court of Appeals

102 N.Y. 219

6 N.E. 273

DUBOIS

v.CITY OF KINGSTON.¹

Court of Appeals of New York.

April 13, 1886.

Appeal from judgment general term supreme court, First department, affirming judgment in favor of plaintiff.

John J. Linson, for appellant.

John E. Van Etten, for respondent.

MILLER, J.

The plaintiff was injured on the evening of November 23, 1872, while running to a fire, which appeared to be in the direction of his own house, in the city of Kingston, by falling over a stepping-stone lying on the sidewalk in one of the streets of said city. The stone was three feet four inches in length, twenty inches wide, and fourteen inches high. It lay lengthwise with the curb, and on the inside thereof, in front of the building containing the post-office, a music hall, and several stores. Across from the stone, diagonally on the inner side of the walk, was a railing, guarding and running along an area-way which led to the basement of the building. This area-way occupied three feet and seven inches of the sidewalk, leaving a passage-way, at its most narrow point between the railing and the stone, of from four feet and ten inches to six feet. At the north end of the stone over which the plaintiff stumbled was a lamp-post, which covered about one-half the width of the stone. At the south end of the stone was a cross-walk. The stone was placed there some three years previously as an accommodation to the public in alighting from and getting into vehicles, and without the knowledge or consent of the defendant, and no proof was given showing any express notice thereof to the defendant. There was evidence upon the trial that some five different persons had fallen over the stone, and been injured thereby. At the time of the accident in question gas-lights were burning in the post-office, and the street-lamp was lighted.

Actions against municipal corporations for injuries sustained by individuals while using or passing along its streets are founded upon the ground of negligence of its officers in the performance of their official duties, and cannot be maintained without evidence showing that they have been derelict in this respect, by means of which the injury has been sustained. We think there was no such proof upon the trial of this action. The stepping-stone over which the plaintiff fell, and was injured, was not of unusual size, or of an improper construction, nor was it located at an improper place. It was placed in a position on the sidewalk most convenient for persons who should alight from a wagon or carriage, or get into the same from the sidewalk, and thus it was a means of accommodation to those who had business at the post-office, or in the building in front of which it was located. It was not any more exposed than was essential for its proper and useful location.

The passage-way between the stone and along the area-way of the building was ample for the accommodation of individuals who were going along the sidewalk, and any person who exercised ordinary care and caution could, under the circumstances presented, have passed along by this stepping-stone...