Murphy v. City of New York

■ This action is to recover damages for a personal injury sustained by plaintiff in stepping into a hole in a cement sidewalk, alleged to have been ©f such size and to have existed a sufficient length of time to charge the defendant with constructive notice of its defective condition. The plaintiff testified that the hole was so large that her entire foot went into it up to her ankle — that it “ was as large as a good sized basin, wash basin.” Emma L. Young, who occupied the store in front of which plaintiff fell, was called as a witness by the plaintiff. She was not asked upon her direct examination anything about the hole or its size. Upon her cross-examination she testified that it was- about six inches in circumference and an inch or an inch and a half deep. The trial court advised counsel for the defendant that in asking the question he had made Mrs. Young his own witness. Whether the question be regarded from this view point or whether she be regarded as the witness of the plaintiff as to all of her testimony, the fact that she differed with plaintiff as to the size of the hole did not conclude the plaintiff upon that question. She was entitled to go to the jury upon the question of whether the hole was or was not of a sufficient size to charge the city with liability for its continuance. This being so, the only element of a prima facie case missing was notice, either actual or constructive, to the defendant of its existence a sufficient length of time before the accident to charge the defendant' *64with liability for its maintenance. To establish this the witness was asked how ■ long before the. accident she had noticed the hole, and answered that she could not say. The following questions Were then asked, rulings made and exceptions taken : “ Q. Was it a month ? The Court: She says she don’t know. I will exclude the question as already answered. [Plaintiff excepts.] Q. Can’t you fix it definitely, whether it was two weeks or three weeks ? The Court: The question is excluded as already answered. [Plaintiff excepts.] Q. Approximately, how long had yon noticed the hole before the accident? [Objected to as' already answered. Objection sustained. Plaintiff excepts.] ” The plaintiff then rested, and a nonsuit was granted upon the ground that there was “nothing in the testimony imputing liability to the city,” to which ruling an exception was taken.. The witness had testified that she had occupied the premises four months, and that every time she went out' to sweep the sidewalk she saw the hole, but could not tell how many times she saw it; that she would sweep the dirt from the sidewalk into the hole at times, and by so doing fill it*up. She had seen the hole, and it was proper for the plaintiff to interrogate her upon this subject and to have her fix one or more of such times definitely or approximately fix the times when she saw it, and the error of the learned trial justice in excluding this evidence requires a reversal of the judgment.

The judgment must be reversed and a new trial granted, costs to abide the event.

Hirschberg, P. J., Woodward, Jenks and Thomas, JJ., concurred.

Judgment reversed and new trial granted, costs to abide the event.