Opinion
November 16, 1910.
Oscar Warner, for the appellant.
Nash Rockwood and Thomas S. Fagan, for the respondent.
The action is to recover damages for injuries sustained by falling on a sidewalk on one of the principal streets of the defendant village, and has resulted in a judgment against the defendant, from from which it appeals.
The defendant in installing its water system set an iron pipe shut-off water box in a brick sidewalk, the cap on top of which was three and three-quarters inches in diameter and projected three-quarters of an inch above the surface of the walk. The sidewalk was in front of a church property and about eleven feet wide and on its inner side had a cement coping six inches high. The width of the coping does not appear, but the testimony is that it was ten and a half inches from its center to the center of the water box cap, hence the cap must have been less than one foot out in the walk from the coping. On the side of the water box which plaintiff was approaching a brick had settled three-quarters of an inch, making the projection on that side of the cap one and a half inches. The plaintiff while walking caught her toe in this projection and fell, and claims to have sustained serious injury.
We are of opinion the defect was of so trivial a character and in such a position in the sidewalk that the defendant should not be held liable for the damages sustained. The shut-off box was a necessity in the proper management of defendant's water system. It could not be buried for it was necessary to unscrew its top to shut off or turn on water. It position, less than a foot from the coping, was reasonably out of the way of ordinary travel. Only on one side had a brick settled less than an inch. On all other sides the projection was only three-quarters of an inch. Scores of places can be found in every village and hundreds in every city of the State presenting greater obstruction to pedestrians than the one for which the plaintiff has recovered damages, and it is placing altogether too great a burden on a municipality to hold it liable for so slight a defect.
It makes no difference that the defendant installed the water pipe, and, therefore, itself constructed the obstruction. A municipality is no more liable for an act of commission than it is for an act of omission. If the obstruction amounts to a defect it is unimportant how it arose. What would not be a defect if arising from omission is not one because it was created by an affirmative act.
Nor does it change the situation that on one occasion a boy attempting to slide on the walk caught his toe in the cap and fell. Such an occurrence did not prove its dangerous character.
The holding of the defendant liable in the present case is directly contrary to a long line of decisions illustrated by Beltz v. City of Yonkers ( 148 N.Y. 67); Hamilton v. City of Buffalo (173 id. 72); Butler v. Village of Oxford (186 id. 444); Getzoff v. City of New York ( 51 App. Div. 450), and Corson v. City of New York (78 id. 481).
It cannot be that the Court of Appeals, in affirming Moroney v. City of New York ( 117 App. Div. 843; affd., 190 N.Y. 560), intended to overturn its holdings in all prior cases and establish a new measure of liability by deciding that an irregularity of one and three-quarters inches in a sidewalk was so substantial a defect as to render a municipality liable for damages.
The fact that the cap projected slightly making a flange, which caught the toe of plaintiff's shoe, does not change the situation. Such a condition was no more of a trap than the broken flagstones in the cases cited. The judgment and order should be reversed and a new trial granted, with costs to the appellant to abide the event.
All concurred, KELLOGG, J., in result, except SMITH, P.J., dissenting.
Judgment and order reversed and new trial granted, with costs to appellant to abide event.