Butler v. Vill. of Oxford

• Decision Date: 18 December 1906
• Parties: BUTLER v. VILLAGE OF OXFORD.
• Court: New York Court of Appeals Court of Appeals

186 N.Y. 444

79 N.E. 712

BUTLER

v.VILLAGE OF OXFORD.

Court of Appeals of New York.

Dec. 18, 1906.

Appeal from Supreme Court, Appellate Division, Third Department.

Action by Polly Butler against the village of Oxford. From a judgment (92 N. Y. Supp. 1118), affirming a judgment in favor of plaintiff, defendant appeals. Reversed.

Hubert C. Stratton and Millard C. Loomis, for appellant.

W. B. Matterson and Harry J. Mosher, for respondent.

HISCOCK, J.

The plaintiff recovered a judgment against the defendant for alleged negligence in permitting to exist a slight difference in surface level between a stone sidewalk and an adjoining dirt walk; she having stumbled against the more elevated edge of the stone walk. We disagree with the decisions of the learned courts below that this judgment should be allowed to stand, and think that it should be reversed.

Originally a canal ran through a portion of the village of Oxford. In time this was filled up, and within certain limits appropriated to use as a public street. At the point where plaintiff's accident happened business buildings had been constructed upon one side of the street, and in front of one or more of them a stone sidewalk had been laid. This walk in one direction terminated at a building which was known as the ‘Laundry,’ and from that point on there was only a dirt walk. Immediately beyond the termination of the stone walk was a driveway leading from the street in question across the dirt walk to the rear of the buildings mentioned. The surfaces of the stone and adjoining dirt sidewalk were not flush at their junction; the surface of the former rising above that of the latter by a distance of about 2 1/2 inches in the center and about 5 inches upon the outer edge of the walk. Plaintiff had been in attendance upon a circus, and in the evening, when it was dark and rainy, approached over the dirt walk toward the stone one, and, in some manner stumbling against the projecting edge of the stone, fell and met with her accident. There were electric lights in the vicinity, which threw their light upon the stone, and enabled plaintiff to see it, and observe that she was approaching and would soon be upon it. There not only was no evidence that anybody else had ever stumbled at this point, but, upon the other hand, there was evidence of the use of this walk by a large number of people at about the same time when plaintiff fell, and also of general use by the public at other times without any resulting accident.

The general principles which govern the liability of a municipality in such an action as this are perfectly well settled. It is not an insurer, and is not expected to maintain walks and streets in such an absolutely perfect condition as to render an accident impossible, but is expected to use reasonable care and prudence in detecting and remedying any defect which it might be fairly anticipated would be dangerous and liable to cause an accident. As is frequently the case, the only difficulty arises in applying these general principles to specific facts and in determining whether, within them, a given situation does or does not present actionable negligence. Weighing the facts here presented, we think it would be altogether too burdensome a rule if we should allow a village like this defendant to be held liable for so insignificant a defect as is here complained of. The nature of the street and the use of the driveway crossing the walk made it quite natural that the stone walk should not be continued beyond the point where it terminated. This being so, there was nothing in the slight difference of grade between the stone and the dirt which reasonably should arouse apprehension of danger to travelers. The photographic exhibits submitted for our inspection make this even more apparent than the evidence. In the center of the walk, where people would be the more apt to pass, the difference in grade was so slight as scarcely to be noticeable, and, although some attempt was made to establish a caving away of the dirt under the end of the stone, this failed, and there was no opportunity for catching the foot and tripping in that way. Ordinary observation teaches us that it would be practically impossible, by the expenditure of any reasonable amount of money, to prevent the existence in a municipality of such trifling imperfections as this one. As a matter of necessity, in the construction of walks much greater obstructions very commonly exist at curbs, gutters, and crosswalks, and it would have required a much higher degree of foresight than the law imposes upon the part of the village authorities to have foreseen the danger of accident to a passer-by. It is a matter entitled to some consideration that the situation complained of was not the result of breakage or wear, which had impaired the original condition of the walk, and which fact of itself sometimes quite strongly suggests the inference of negligence. Then, too, the opinion which it must be assumed the village authorities held that this situation was not...