Lalor v. City of New York

• Decision Date: 20 May 1913
• Citation: 102 N.E. 558,208 N.Y. 431
• Parties: LALOR v. CITY OF NEW YORK.
• Court: New York Court of Appeals Court of Appeals

208 N.Y. 431

102 N.E. 558

LALOR

v.CITY OF NEW YORK.

Court of Appeals of New York.

May 20, 1913.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by Mary Lalor against the City of New York. From a judgment of the Appellate Division (147 App. Div. 649,132 N. Y. Supp. 539), reversing a judgment dismissing the complaint, defendant appeals. Reversed.

Archibald R. Watson, Corp. Counsel, of New York City (James D. Bell and Jesse W. Johnson, both of Brooklyn, of counsel) for appellant.

A. L. Pincoffs, of New York City, for respondent.

COLLIN, J.

[1] The action is to recover the damages for personal injuries sustained by the respondent through stepping into a hole in the asphalt pavement of Manhattan avenue at the corner of Huron street in the borough of Brooklyn. The judgment of the trial court dismissing the complaint at the close of respondent's evidence was reversed by the Appellate Division. We are to determine whether or not the evidence presented an issue of fact; in reviewing it we must give the respondent the advantgage of all the facts properly presented, and of every favorable inference that can reasonably be drawn. Kraus v. Birnbaum, 200 N. Y. 130, 93 N. E. 474;Pinder v. Brooklyn Heights R. R. Co., 173 N. Y. 519, 66 N. E. 405.

[2] A witness for the respondent testified that the hole was circular, about as large as the head of a barrel, was about midway of the street, and extended from the edge of the crossing which the respondent was using at the time she was injured. He testified further that he measured with exactness the depth of the hole in a manner which he described, and its depth at its deepest part was four inches. The condition of the hole at the time of the measurement and at the time of the accident was the same. There are no circumstances revealed by the evidence which lessen or mitigate the effect of our decisions as authority that, as matter of law, the existence of the hole, as described by the witness, did not charge the defendant with negligence. Hamilton v. City of Buffalo, 173 N. Y. 72, 65 N. E. 944;Beltz v . City of Yonkers, 148 N. Y. 67, 42 N. E. 401;Butler v. Village of Oxford, 186 N. Y. 444, 79 N. E. 712;Terry v. Village of Perry, 199 N. Y. 79, 92 N. E. 91,35 L. R. A. (N. S.) 666, 20 Ann. Cas. 796.

The respondent asserts that there was a conflict between the testimony of the witness referred to and the testimony of other witnesses in her behalf necessitating a submission to the jury. At the opening of the trial the respondent testified that after the accident she, looking back, glanced at the hole, and guessed and estimated that it was eight inches deep. She was followed upon the witness stand by a woman who was with her at the happening of the accident, and who testified that she guessed it was about nine inches deep. Next as a witness came a man who testified that in his ‘estimation the hole was about six or seven inches deep at the deepest point.’ Then a woman, who also was with the respondent when she was injured, testified that the hole was from four to six inches deep. She was followed by a man who testified that the hole was, in his opinion, five or six inches deep. No one of...