Opinion
April, 1905.
Edward H. Wilson [ James D. Bell and John J. Delany with him on the brief], for the appellant.
Henry A. Powell, for the respondent.
Present — HIRSCHBERG, P.J., BARTLETT, JENKS and MILLER, JJ.
In this action the plaintiff has recovered a verdict of $2,500 damages for injuries sustained by stepping into a hole in the paved roadway of a city street in the borough of Brooklyn, just after she had alighted from an electric car in the night time. It is argued that the hole was not of such a character as to make its permitted existence negligence on the part of the municipality, under the authority of Hamilton v. City of Buffalo ( 173 N.Y. 72). In that case it was held as a matter of law that a municipal corporation was not chargeable with negligence for permitting the existence in a flagged sidewalk of a rounded depression about four inches deep. Evidently having that decision in mind, the learned trial judge in the case at bar expressly charged the jury as a matter of law that if this was not a hole six, seven or eight inches deep, as stated by the witnesses on the part of the plaintiff, but was a saucer-shaped depression, not over four inches in depth at its lowest point, the defendant would not be liable. The proof clearly justified a finding that the hole was seven inches deep, and it cannot fairly be held that the conclusion which the jury must have reached to that effect was against the weight of evidence. The plaintiff herself testified that her leg was injured seven or eight inches above the ankle, and that the bruises on that part of the limb were caused by the edge of the stone. There was testimony from another witness to the effect that the hole was seven inches in depth, and from others that its depth exceeded five inches.
None of the exceptions to which our attention is called by counsel for the appellant points to any error on the part of the trial court. The fact that witnesses merely estimated the depth of the hole by visual observation instead of actually making mechanical measurements, while it affected the weight to be given to their testimony by the jury, did not render such testimony incompetent. The objection to the photograph which was admitted in evidence, that it represented the condition of the hole in October, 1902, instead of in April, 1902, the time of the accident, was rendered ineffectual by proof that it correctly represented the hole in the condition in which it was on the day of the accident, with the qualification that it then appeared to have been deeper than shown in the picture.
In view of the fact that the plaintiff sustained a fracture of her ankle, and in the light of all the evidence in the case as to her suffering, and the other effects of the injury, we are unable to pronounce the verdict excessive under the circumstances.
The judgment and order should be affirmed.
Judgment and order unanimously affirmed, with costs.