Holloway v. City of Lockport

• Decision Date: 19 October 1889
• Citation: Holloway v. City of Lockport, 7 N.Y.S. 363 (N.Y. Super Ct. 1889)
• Parties: Holloway v. City of Lockport
• Court: Superior Court of New York

7 N.Y.S. 363

Holloway v. City of Lockport

Supreme Court of New York, General Term, Fifth Department

October 19, 1889

Appeal from circuit court, Niagara county.

Action by George L. Holloway against the city of Lockport, for personal injuries caused by the defendant's neglect to keep a sidewalk within the city limits in a safe condition. At the close of plaintiff's evidence defendant moved for a nonsuit, which was denied. Defendant appeals from a judgment entered on a verdict of $ 375 for plaintiff, and from an order denying the defendant's motion for a new trial, founded on a case containing exceptions.

Judgment affirmed.

John E Pound, for appellant.

S.E Graves, for respondent.

Argued before Barker, P. J., and Dwight and Macomber, JJ. All concur

OPINION

Barker, P. J.

The exception to the refusal to grant a nonsuit presents the only question which merits much consideration. The plaintiff is a resident of the city of Lockport, and at the time of the accident he resided on Van Buren street, on one side of which there was a plank sidewalk four feet wide, the plank being laid crosswise upon stringers. He passed over this section of the walk daily in going to and from his place of business his occupation being that of a machine blacksmith. On the day mentioned, while walking along the sidewalk he stepped on one of the planks, which caused it to tip up, and catch the plaintiff's other foot, and he was thrown down on his hands and face, and received an injury to one of his knees, which disabled him for 40 days, from which he had substantially recovered at the time of the trial. The plank was warped, loose, and unnailed, so that when stepped upon the edge of the plank would turn up above the general level or surface of the sidewalk. As the plaintiff fell the plank was entirely removed from its place, and when the plaintiff was down it was between his legs. The evidence tended to prove that this place had been in this condition for a considerable length of time previous to the accident, and from the proofs the jury were justified in finding that the officers of the city having charge of the streets and sidewalks knew the real condition of the walk at this place. One of the deputy street commissioners passed over this part of the walk daily, for months, immediately preceding the accident, and other persons who passed over the walk observed that the plank was not nailed, and was loose, and moved when stepped upon. It is a matter of common observation to all persons who are accustomed to walk upon plank sidewalks that a loose, warped, and unfastened plank, laid crosswise, and on stringers, constitutes a dangerous trap in the sidewalk; so, if it be true, as the plaintiff's evidence tended to establish, and which was not much disputed by the defendant's witnesses, enough was shown as to the condition of the walk to justify the finding that the defendant was guilty of negligence in permitting this walk to remain in an insecure and unsafe condition. The duty of the...