Opinion
April 19, 1907.
Robert Stewart [ Ralph G. Barclay with him on the brief], for the appellant.
James D. Bell [ James W. Covert and William B. Ellison with him on the brief], for the respondent.
The case presented by the plaintiff was very much lacking in precision; but still the jury could have found that the flag sidewalk for a considerable distance where she fell was broken and defective; that there were depressions and holes; that where she fell one set of flags across the sidewalk were higher than the adjoining set; that as she slipped to some extent on a piece of ice her foot was caused to go into a hole up to her ankle, and that the going of her foot into the hole threw her down and hurt her. It cannot be said as matter of law that the ice was the proximate cause, for it was at least a question of fact whether it was the ice which caused her to fall. Nor was the fact that she was familiar with the place and knew it to be dangerous sufficient to justify the non-suit. The fact that one goes over a defective sidewalk is not negligence as matter of law ( Bullock v. Mayor, 99 N.Y. 654; Pomfrey v. Village of Saratoga Springs, 104 N.Y. 459). The case of a street torn up for repair, and littered ( Whalen v. Citizens' Gas Light Co., 151 N.Y. 70), or where a person deliberately steps on a dangerous obstruction or defect ( Weston v. City of Troy, 139 N.Y. 281), is entirely different. If one walks through such litter, or knowingly and intentionally steps on a dangerous place, he takes the risk. It is not here intimated that this plaintiff was careful, or that the street was dangerously defective; these are questions of fact for the new trial.
The judgment should be reversed.
HIRSCHBERG, P.J., HOOKER, RICH and MILLER, JJ., concurred.
Judgment and order reversed and new trial granted, costs to abide the event.