Whalen v. Citizens' Gaslight Co.

• Decision Date: 01 December 1896
• Citation: 45 N.E. 363,151 N.Y. 70
• Parties: WHALEN v. CITIZENS' GASLIGHT CO.
• Court: New York Court of Appeals Court of Appeals

151 N.Y. 70

45 N.E. 363

WHALEN

v.CITIZENS' GASLIGHT CO.

Court of Appeals of New York.

Dec. 1, 1896.

Appeal from city court of Brooklyn, general term.

Action by Ann Whalen against the Citizens' Gaslight Company. From a judgment of the general term (30 N. Y. Supp. 1077) affirming a judgment for plaintiff, defendant appeals. Reversed.

Frank Sullivan Smith, for appellant.

Isaac M. Kapper, for respondent.

HAIGHT, J.

This action was brought to recover damages for a personal injury. On the 12th day of September, 1893, the defendant was engaged in laying a gas pipe across the sidewalk in Court street in the city of Brooklyn, connecting its gas main in that street with the premises on the northeast corner of Court and Sackett streets. For this purpose it had obtained the consent of the city authorities for the removal of the flagstones of the sidewalk in order to dig a trench in which to lay the pipe. At the time of the accident complained of it had caused a flagstone next to the building to be removed, and another flagstone, four feet two inches in length by three feet four inches in breadth, and between three and four inches in thickness, in the center of the walk, to be taken up and placed upon an adjoining flagstone upon the walk, and its employés were engaged in digging a pit next to the house, intending to tunnel through the intervening space, so as not to necessitate the removal of any more of the sidewalk. The space between the two openings undisturbed was about five feet. While the walk was in this condition the plaintiff approached, tripped her foot upon the flagstone that had been removed, fell upon it, and sustained the injury for which this action was brought. It was about a quarter before 11 o'clock in the forenoon, and was a nice day. She was about 70 years of age, and had been engaged in doing general housework and sewing, and used to go out to wash, iron, and clean house. She testified that her eyesight was very good, and that she did not notice the flagstone, or the excavation beside it, as she came near the place where she fell; that she was looking along the street as she walked.

It is the well-settled law of this state that, in actions of this character, the absence of negligence on the part of the plaintiff contributing to the injury must be affirmatively shown by the plaintiff, and that no presumption of freedom from such negligence arises from the mere happening of an injury. Reynolds v. Railroad Co., 58 N. Y. 248;Weston v. City of Troy, 139 N. Y. 281, 34 N. E. 780. If this law is to be recognized and followed, we are unable to see how this judgment can be sustained, for to hold otherwise would practically overrule and annul the rule of contributory negligence. As we have seen, it was a bright day, and about 11 o'clock in the forenoon. The obstacle over which the plaintiff fell was a large flagstone over four feet in length and three in breadth. There was nothing to obscure her vision; her...