Even if the crevice were of long standing, it was so slight a defect that continued use of the steps should be held as a matter of law not to constitute negligence. See Kraus v. Wolf, 253 N.Y. 300, 171 N.E. 63; Dwyer v. Hill Brothers Co., 79 App. Div. 45, 79 N.Y.S. 785; Tryon v. Chalmers, 205 App. Div. 816, 200 N.Y.S. 362; Stark v. Franklin Simon Co., 237 App. Div. 42, 260 N.Y.S. 691; Chapman v. Clothier, 274 Pa. 394, 118 A. 356. Consequently we conclude that neither with respect to the crack nor with respect to the litter was there evidence of negligence sufficient to go to the jury. The defendant's motion to dismiss should have been granted.
In Supreme Instruments, we stated: `The court is not ignorant of common devices and common dangers, and no admission or expert opinion can establish liability where common knowledge shows that there was no danger so substantial that a reasonable man in the position of the defendant would have anticipated injury and guarded against it.' See also Haddon v. Snellenburg, 293 Pa. 333, 143 A. 8; Toscani v. Quackenbush Co., 112 N.J.L. 173, 170 A. 212; Stark v. Franklin Simon Co., 237 App. Div. 42, 260 N.Y.S. 691; Dickson v. Emporium Mercantile Co., 193 Minn. 629, 259 N.W. 375; Boyle v. Preketes, 262 Mich. 629, 247 N.W. 763, 765. In the last named case the Court said: `It has long since been recognized that falling downstairs, where the mishap was not imputed to unknown or concealed defects, belongs to that class of ordinary accidents which ought to be imputed to the carelessness or misfortune of the sufferer.
Although such construction was denounced by expert witnesses as being "not a good form of construction," the appellate court upheld a finding for the defendant, using the following language: "The court is not ignorant of common devices and common dangers, and no admission or expert opinion can establish liability where common knowledge shows that there was no danger so substantial that a reasonable man in the position of the defendant would have anticipated injury and guarded against it." See also Haddon v. Snellenburg, 293 Pa. 333, 143 A. 8; Toscani v. Quackenbush Co., 112 N.J.L. 173, 170 A. 212; Stark v. Franklin Simon Co., 237 App. Div. 42, 260 N.Y.S. 691; Dickson v. Emporium Mercantile Co., 193 Minn. 629, 259 N.W. 375; Boyle v. Preketes, 262 Mich. 629, 247 N.W. 763, 765. In the last named case the Court said: "It has long since been recognized that falling downstairs, where the mishap was not imputed to unknown or concealed defects, belongs to that class of ordinary accidents which ought to be imputed to the carelessness or misfortune of the sufferer."
In particular, she could not recall whether she tripped or slipped on anything, and she did not look at the stairs after her accident to ascertain why she had fallen. In opposition, the plaintiffs failed to raise a triable issue of fact. Contrary to the plaintiffs' contention, the stairs in question were not "interior stairs" as that term is defined in Administrative Code of the City of New York § 27-232, and thus did not require a handrail ( see Walker v. 127 W. 22nd St. Assoc., 281 AD2d 539; cf. Union Bank Trust Co. of Los Angeles v. Hattie Carnegie, Inc., 1 AD2d 199; Stark v. Franklin Simon Co., 237 App Div 42). "[U]nless a stairway in a store or other commercial or public premises comes within the purview of a statute requiring that handrails be provided, the owner may not be held liable for maintaining a dangerous stairway because of the absence of a handrail where the steps are in no way defective" (86 NY Jur 2d, Premises Liability § 445; compare Brooks v. Bergdorf-Goodman Co., 5 AD2d 162 [complaint dismissed in absence of evidence of any defect or code violation predicated on lack of handrail], and Union Bank Trust Co. of Los Angeles v. Hattie Carnegie, Inc., supra [same], with Chafoulias v. 240 E. 55th St. Tenants Corp., 141 AD2d 207 [complaint reinstated where location and appearance of stairs presented a dangerous condition or trap, even though absence of handrail was not in violation of code], and Portilla v. Rodriguez, 179 AD2d 631 [new trial granted where evidence of code violation based on absence of handrail was tendered, even though no defect in stairs had been alleged]). Acc
This imperfection in the sidewalk was too slight to afford a basis for a finding of negligence on the part of the defendant. ( Newhall v. McCann, supra, and cases cited p. 397; Stark v. Franklin Simon Co., Inc., 237 App. Div. 42; Shannon v. Bergener, 263 id. 824.) It is common knowledge that there are innumerable similar indentations in sidewalks all over the city which are much larger than the cavity here involved, particularly in metal plates inserted in sidewalks and at sewer entrances. It is universally recognized that such minor indentations, cavities or imperfections are innocuous and do not furnish a foundation for a claim of negligence. It may not be said that a prudent person should have reasonably anticipated that the slight opening in the surface of the walk would be a source of danger, especially since there was no proof of prior accidents, although innumerable people had necessarily passed over this very place in the sidewalk. The judgment in favor of plaintiffs should be reversed on the law and the facts, with costs, and the complaint dismissed on the law, with costs.
It was error to refuse to dismiss the complaint. ( Hart v. Grennell, 122 N.Y. 371, 374; Weller v. Consolidated Gas Co., 198 id. 98; Powers v. Montgomery Ward Co., Inc., 251 App. Div. 120; affd., 276 N.Y. 600; Stark v. Franklin Simon Co., Inc., 237 App. Div. 42; Weinstein v. R.H. Macy Co., 163 Misc. 61; Robinson v. Piskosh, Inc., 259 App. Div. 544.) Further, plaintiff was guilty of contributory negligence as matter of law. ( Robinson v. Piskosh, supra.)
The court held that this was insufficient to show that the defendant was negligent. In Stark v. Franklin Simon Co., Inc. ( 237 App. Div. 42) it appeared that the plaintiff tripped on a metal strip near steps leading to a lower floor in defendant's store and fell. The metal strips were three-eighths of an inch thick. It was held that these facts were not sufficient to charge the defendant with negligence. In Murray v. New York Central R.R. Co. ( 229 App. Div. 749; affd., 256 N.Y. 623) the plaintiff testified that as he alighted from the train he stepped on an uneven and wobbly piece of curbing which caused him to fall.
The plaintiff cites cases involving floors made dangerous by the presence of soap, soapy water, fruit, fresh oil and the like. Such conditions to our mind readily suggest the probability of slipping. The presence of these rubber bands is more comparable to the presence of a worn marble step, a rubber mat, a metal strip, a pool of water in a slight depression, a worn mat, in which instances recovery has been denied as matter of law. ( Tryon v. Chalmers, 205 A.D. 816; Rosen-Steinsitz v. Wanamaker, 154 N.Y.S. 262; Stark v. Franklin Simon Co., Inc., 237 A.D. 42; Kraus v. Wolf, 253 N.Y. 300; Dwyer v. Hills Brothers Co., 79 A.D. 45.) While the facts differentiate Greene v. Sibley, etc., Co. ( 257 N.Y. 190), the principle there enunciated is applicable.