June 29, 1923.
Nottingham, Clymer, Smith Kingsley [ J.E. Kingsley of counsel], for the appellant.
Alvord Brewster [ D. Eaton Alvord of counsel], for the respondent.
This action is to recover damages for personal injuries sustained by plaintiff by falling on a sidewalk maintained by defendant at its park on an island in the St. Lawrence river. The accident occurred about four-thirty o'clock on the afternoon of Sunday, August 7, 1921.
Defendant is a corporation and owns and operates the Thousand Island Park. In the park it maintains a system of sidewalks for the use of its patrons and visitors to the island.
The wooden sidewalk on which plaintiff sustained her fall is maintained by defendant. It is located in a somewhat remote portion of the park, and while it is used to some extent by visitors and tenants at the park, it is less frequently used than other walks which are more centrally located.
The walk where plaintiff was injured was constructed of pine boards nailed to hard pine stringers. It could be found from the evidence that defendant had caused this walk to be thoroughly repaired in June, 1921, less than two months before the accident. New stringers had been put down and only sound boards from the old walk had been replaced in it.
Plaintiff and a lady friend went over this walk shortly before the accident. The surface was smooth and all boards in place, and no defects were discovered. They went a few feet beyond the place of the accident, and then retraced their steps when suddenly plaintiff tripped on a loose board which her companion had evidently stepped on causing it to tip up.
On the previous Friday evening, and about forty-four hours before the accident occurred, a third party, not employed by defendant, pulled up two boards in this walk in an endeavor to find a coin some boys had lost there. He replaced and tamped them, but it was dark and he had nothing but a stone to work with, but the boards were replaced so that no defects were observable, although it was evident the boards were not securely nailed.
Plaintiff undoubtedly tripped on one of the boards that had been removed by this third party, for they were the only loose ones in the walk.
No actual notice of the disturbing of these boards had been given to defendant, and under the circumstances as disclosed by the evidence, we do not consider that it was chargeable with constructive notice.
Plaintiff and her companion and her attending physician described the boards as rotten, while ten or eleven witnesses who saw the walk often and traveled over it, testified that it was a sound and substantial walk, and that none of the boards were loose or decayed.
The principal question before us is whether the evidence warranted a finding by the jury that defendant was negligent.
It is plain that the defect in the walk at the point where plaintiff received her injuries was not occasioned by ordinary use and wear, or natural decay of the boards. It was practically undisputed that the accident occurred because a couple of boards had been removed by the act of a third party, not in the employ of defendant, and that it had no actual notice of such removal before the accident. All witnesses agree that up to the time plaintiff sustained her injuries, the surface of the walk was smooth and there was nothing to indicate that it was defective, or that it contained loose boards. No previous accident had ever occurred on this walk.
Defendant having assumed to maintain the walk which its patrons were invited to use as occasion required, it owed to them the duty to keep it in a reasonably safe condition. ( Dorsey v. Chautauqua Institution, 203 App. Div. 251.) But it was not the insurer of their safety.
This defect could not be discovered by ordinary inspection. Even plaintiff, who passed over this precise spot only a few seconds before the accident, observed nothing out of way with the walk, the surface of which was smooth, and she passed over it in entire safety.
Considering the fact that this walk had been thoroughly repaired less than two months before the accident, and that it was in a somewhat remote place on the island, and that its surface was smooth and the boards apparently sound, we do not think reasonably prudent men would anticipate that an accident would occur there, and that the removal of the boards by a third party had not occurred at such a length of time before the accident to charge defendant with constructive notice of the defect, if, in fact, any existed. ( Ferguson v. Village of Waverly, 128 App. Div. 697. )
This defendant would not be liable for defects in its sidewalk unless it had either actual or constructive notice thereof. ( White v. State of New York, 113 Misc. Rep. 595; Beltz v. City of Yonkers, 148 N.Y. 67; Fox v. Village of Manchester, 183 id. 141; Kelly v. City of New York, 188 N.Y. Supp. 801; Todd v. City of Troy, 61 N.Y. 506.)
In this case we do not think under the evidence it could be said that defendant had either actual or constructive notice of the alleged defect in this sidewalk.
Moreover, the finding that defendant was negligent was contrary to and against the weight of the evidence.
While the fact that defendant produced the greater number of witnesses on the question of negligence is of no particular moment, their testimony seems more reasonable and probable than that of plaintiff and her friend and her personal physician. They attempted to magnify the alleged defects to such a degree that it naturally arouses curiosity as to whether their evident interest did not warp their testimony.
We are of the opinion that the verdict is against the weight of the reliable evidence, and that it would be an injustice to impute negligence to defendant on this evidence.
The judgment should be reversed and a new trial granted, with costs to appellant to abide the event.
Judgment and order reversed on the facts and new trial granted, with costs to appellant to abide event.