Kelly v. City of New York

Full title: MARY ANN KELLY, Respondent, v . THE CITY OF NEW YORK and THE BROOKLYN…

Court: Appellate Division of the Supreme Court of New York, Second Department

Date published: Dec 30, 1908

129 App. Div. 658 (N.Y. App. Div. 1908)

114 N.Y.S. 178

Opinion

December 30, 1908.

James D. Bell [ James W. Covert and Francis K. Pendleton with him on the brief], for the appellant The City of New York.

William L. Kiefer [ Frank V. Johnson with him on the brief], for the appellant asphalt company.

Frederick S. Martyn [ William J. Pape with him on the brief], for the respondent.

RICH, J.:

This appeal is from a judgment in favor of the plaintiff in an action for negligence. The appellants contend, first, that there was no proof of negligence sufficient to warrant a recovery, and, second that there was no proof of plaintiff's freedom from contributory negligence, and an alleged error of the trial justice in refusing to charge a request.

There was sufficient evidence to warrant the court in submitting to the jury the question of negligence of both the defendants. The case at bar is not within the rule declared in Butler v. Village of Oxford ( 186 N.Y. 444); Hamilton v. City of Buffalo (173 id. 72); Beltz v. City of Yonkers (148 id. 67) and similar cases cited by the appellants. The same distinguishing features exist that were pointed out in Corr v. City of New York ( 121 App. Div. 578).

Defendants requested the court to charge that "if the jury find that the difference in height between the Belgian block and the foundation was not greater than three inches this was not such a condition as would render the city liable for negligence," which was refused. The jury had been instructed that if the accident happened by reason of some condition of the street or sidewalk from which danger was not reasonably to be apprehended, and which according to common experience was not likely to happen in such a case, the city was not liable. The question was whether the condition was such that danger was reasonably to be apprehended, which must be determined by the facts proven. I think the learned trial justice properly refused to charge as requested. He left it to the jury to say whether or not the facts established the liability of the defendants under the rules of law laid down for their guidance, and in doing this he was clearly right.

The judgment and orders should be affirmed, with costs.

HOOKER and MILLER, JJ., concurred; JENKS and GAYNOR, JJ., dissented.

Judgment and orders affirmed, with costs.