Opinion
March, 1935.
Action for personal injuries sustained by plaintiff when she fell on a concrete sidewalk on the east side of Fourth avenue, near Fiftieth street, in Brooklyn, by reason of a depression in the walk, four inches in depth, caused when "the subway fill settled," about a year before the accident. Judgment in favor of defendant The City of New York and order denying plaintiff's motion to set aside the verdict and for a new trial reversed on the law and the facts and a new trial granted, with costs to the appellant to abide the event. In our opinion, the exclusion of the testimony of the witness Linah, as to what happened to her in September, 1929, at the place of plaintiff's accident, the rulings of the court in respect thereto at folios 213, 214 and 216, and the charge of the court at folios 411 and 412 in reference to the difference of four inches in the elevation of the concrete "flags" were prejudicial errors. It was for the jury to determine whether the condition was such that the city authorities should have anticipated that such an accident might happen. Lazansky, P.J., Hagarty, Tompkins, Davis and Johnston, JJ., concur.