Stratton v. City of New York

• Decision Date: 20 December 1907
• Citation: 190 N.Y. 294,83 N.E. 40
• Parties: STRATTON v. CITY OF NEW YORK.
• Court: New York Court of Appeals Court of Appeals

190 N.Y. 294

83 N.E. 40

STRATTON

v.CITY OF NEW YORK.

Court of Appeals of New York.

Dec. 20, 1907.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by Fannie P. Stratton against the city of New York. From an order of the Appellate Division (117 App. Div. 887,103 N. Y. Supp. 358), reversing a judgment of dismissal, defendant appeals. Reversed.

Edward T. Bartlett, J., dissenting.

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

Charles P. Cowles, for respondent.

HISCOCK, J.

While plaintiff was attempting to cross Dean street, near the corner of Flatbush avenue, in the borough of Brooklyn, in daylight, she slipped on an alleged obstruction in the gutter of Dean street, which she claims had been so negligently allowed to remain there for a long time by the city that the latter is responsible for her injuries. This alleged obstruction consisted of a concrete construction about 5 or 6 feet long, sloping from the top of the curb to the pavement; the sloping surface being about 18 inches wide, and the greatest perpendicular height being about 6 inches. It was located at a point where a pedestrian would naturally cross, and had been there about six years. The plaintiff was traveling from the sidewalk towards the pavement, and testified that she did not see it before stepping upon it and slipping. There was no evidence of prior accidents, except that one witness, in ascending from the pavement to the sidewalk, had slipped a couple of times when the concrete was covered with snow or ice, and another witness going in the same direction upon one occasion had stumbled against it.

In the recent case of Butler v. Village of Oxford, 186 N. Y. 444, 79 N. E. 712, this court formulated the general principles which govern the liability of a municipality with respect to such an accident as this in the following rule: ‘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.’ And in that case we decided that the defendant might not be held liable for injuries received by a traveler in the nighttime who had stumbled against the edge of a stone sidewalk which abruptly projected above an adjoining dirt sidewalk by a...