Gastel v. City of New York

• Decision Date: 05 January 1909
• Parties: GASTEL v. CITY OF NEW YORK.
• Court: New York Court of Appeals Court of Appeals

194 N.Y. 15

86 N.E. 833

GASTEL

v.CITY OF NEW YORK.

Court of Appeals of New York.

Jan. 5, 1909.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by Charles Gastel against the city of New York. A motion for nonsuit was granted, and plaintiff's exceptions were sustained, and a new trial granted (126 App. Div. 936,110 N. Y. Supp. 1129), and defendant appeals. Reversed, and judgment entered on the order of the Trial Term dismissing plaintiff's complaint.

This action was brought to recover damages for the alleged negligence of the defendant in maintaining a defective sidewalk on Prospect Park West near the intersection of Sixteenth street, whereby plaintiff was tripped and injured by falling on the walk. The evidence tends to establish that plaintiff did trip and fall at the point in question. It also establishes that for a considerable time prior to the date of the accident there had been a difference in level of the adjacent portions of the sidewalk maintained by the defendant at the point in question. This difference in level was about 3/8 of an inch at the curb, and gradually increased to about 1 3/4 inches on the inner side of the walk, which was 19 feet wide. The difference seems to have been occasioned by the construction of a new walk which met the old walk at this point and on a slightly different grade. The plaintiff was quite familiar with the locality, and it was reasonably lighted at the time of the accident. He seems to have been walking inside of the center line of the walk, but not at the inner edge where the difference in level was the greatest. There was evidence that others had tripped and fallen at the same point and by reason of this difference in the level of the two sidewalks.

Francis K. Pendleton, Corp. Counsel (James D. Bell, of counsel), for appellant.

Robert Stewart, for respondent.

HISCOCK, J. (after stating the facts as above).

The determination of this action would be controlled beyond debate by our decision in Butler v. Village of Oxford, 186 N. Y. 444, 79 N. E. 712, except for one feature which is claimed to distinguish it from that case. In the Village of Oxford Case there was no evidence of prior accidents at the point where the plaintiff stumbled and fell, whereas in this case there is evidence that other people had been tripped by the alleged obstruction. It is true that some of this testimony is so extravagant as to create a strong and immediate distrust of its truthfulness and accuracy, but, of course, this question of veracity would be for the jury, and, if the evidence is sufficient on its face to differentiate this case from the other and take it to the jury, the decision of the learned Appellate Division must be affirmed. We do not think, however, that it is thus sufficient.

When an alleged defect or obstruction is of such a...