Opinion
June Term, 1901.
Thomas S. Jones, for the appellant.
C.S. Mereness, for the respondent.
The judgment and order in this case must be reversed. The action is to recover damages for injuries sustained by the plaintiff in falling from a sidewalk in the village of Port Leyden. The sidewalk in question crossed a creek known as Cold brook, and was elevated above the bed of the stream about four feet. The walk was four feet in width and originally had a guard rail along each side. On one side this had been off for over two years, and the railing on the opposite side deflected inward, narrowing the space for the traveling public, although there was ample room for a person to walk along. This condition of things justified the jury in finding that the defendant was guilty of the negligence charged in the complaint. The difficulty with the plaintiff's case is her own want of caution.
On the 7th day of November, 1899, the plaintiff with a lady companion was passing over this footbridge. The plaintiff's dog had been following them, and this companion told the plaintiff, as they were going upon the bridge, that some men in the street were scaring the dog. Plaintiff apparently gave no heed to this remark until they were nearly across, when she turned her head to see the dog and walked off the bridge where there was no railing, falling on the stones in the creek and receiving serious injuries. It was in daylight, a clear day, and the plaintiff had often crossed the bridge, was familiar with the surroundings and the absence of the railing was obvious. Her own want of caution, therefore, contributed to the accident and prevents her recovery. ( Whalen v. Citizens' Gas Light Co., 151 N.Y. 70.) In commenting upon the necessity of plaintiff showing affirmatively the absence of contributory negligence the court, in that case, says (p. 73): "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." While a traveler passing along the sidewalk can ordinarily indulge the presumption that the way is reasonably safe, the rule does not obtain where the dangerous condition is obvious and known to the wayfarer. ( Weston v. City of Troy, 139 N.Y. 281.)
The judgment and order should be reversed and a new trial ordered, with costs to the appellant to abide the event.
All concurred.
Judgment and order reversed and new trial ordered, with costs to the appellant to abide event.