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App. Div.]


der of the crosswalk. The evidence shows that at the time of this accident the water had cut a channel at one side of the old right of way of the railroad, and that it had undermined one end of the flagstone in such a manner as to permit it to project out over the channel which had thus been produced, so that any one passing over this crosswalk was liable, as did the plaintiff, to step into this channel and slip under the end of this stone, tripping and falling. It was in evidence that the plaintiff was a stranger in the place; that she had passed over this walk but once, and this time she was in company with three other women, two of them in advance, the plaintiff and the third following and talking with the others. Her attention was not called to the defect in the walk, although the women who were with her testify that they had been aware of its dangerous condition for many months, and that the defect was easily to be seen in passing over it. Almost immediately after passing over this place the plaintiff, desiring to meet some of her friends who had gone to do an errand, retraced her steps, walking slowly in order to give them time to do their mission, and while crossing Depot place she caught her foot in this channel under the end of the blue flagstone and fell, sustaining the injuries complained of.

It is urged on the part of the defendant that the danger being obvious, as testified to by the witnesses of the plaintiff, the plaintiff has not sustained the burden of proving a lack of contributory negligence on her part, and that the judgment in her favor cannot, therefore, be sustained.

This accident, it is true, occurred in broad daylight, and the plaintiff was bound to exercise reasonable care in walking the streets; but we are not prepared to say as a matter of law that the plaintiff was bound to exercise a degree of vigilance which would discover to her a defect in the condition of this crosswalk which the defendant urges in a subsequent point was of such a trifling nature that, conceding its existence, it was not sufficient to charge the defendant with negligence. No case has gone further, perhaps, in denying the right of a plaintiff to recover in actions of this character than Whalen v. Citizens' Gas Light Co. (151 N. Y. 70). In that case the court, after stating the rule in reference to contributory negli gence, say: "If this law is to be recognized and followed, we are APP. DIV.-VOL. XXXVIII. 74


[Vol. 38. unable to see how this judgment can be sustained, for to hold otherwise would practically overrule and annul the rule of contributory negligence. As we have seen, it was a bright day and about eleven o'clock in the forenoon. The obstacle over which the plaintiff fell was a large flagstone over four feet in length and three in breadth. There was nothing to obscure her vision; her eyesight was good and she could see as she was walking along the walk. It is not pretended that anything occurred that momentarily obstructed her vision, and it is difficult to conceive how she could have avoided seeing the obstacle unless she was heedlessly proceeding in utter disregard of the precautions usually taken by careful and prudent people." The general rule is stated in Weston v. City of Troy (supra), that "The presumption which a wayfarer may indulge, that the streets of a city are safe, and which excuses him from maintaining a vigilant outlook for dangers and defects, has no application where the danger is known and obvious;" but in the Whalen case the court in effect held that the dangerous condition of the walk was so obvious that it was the duty of the plaintiff to know, and that a failure to make use of her eyes in a reasonable manner in discovering danger was, of itself, contributory negligence. In the case at bar the defect in the crosswalk was not known to the plaintiff, nor was it, in our judgment, sufficiently obvious so that the court is warranted in saying, as a matter of law, that she was negligent in not discovering the defect in passing slowly over the walk. It cannot be the rule that pedestrians, even in broad daylight, are called upon to minutely inspect crosswalks and sidewalks in passing over them. They have a right to assume that they are reasonably adapted to the use for which they are instituted, and the rule of law is satisfied when the pedestrian has exercised that reasonable degree of care which is imposed upon all persons under similar circumstances.

In the Weston Case (supra) the court say: "The evidence on the part of the plaintiff tends to show that the ridge of ice was plainly visible, and that it formed a dangerous obstruction to the use of the sidewalk was shown by the fact that two other persons had fallen there on the same day the plaintiff fell, and another person two or three weeks before. Whether the plaintiff saw the ridge before stepping upon it does not appear, nor was it shown whether she was walking fast or slow, or what attention she was paying, if any, to

App. Div.]


the condition of the sidewalk. If she discovered the ridge, she was not required to leave the sidewalk, but she might, without being subjected to the charge of negligence, using due care, have kept on her way. But she could not heedlessly disregard the precautions which the obvious situation suggested, and proceed as though the sidewalk was free and unobstructed." That is, the plaintiff, on a winter's day, following a two-inch fall of light snow, "rendering it more dangerous," to quote the language of the court, was not justified in disregarding the "precautions which the obvious situation suggested." It was incumbent on her to show to the jury some fact on which they would be justified in concluding that she had exercised proper care in traversing the sidewalk. In the case at bar the plaintiff, on a day in the middle of April, when there were no conditions calling for the exercise of unusual care, while passing slowly over a crosswalk, stepped her foot into a channel extending under the end of a stone used in the construction of the walk and was thrown down, receiving serious injuries. Under the circumstances it seems clear that the jury was justified in concluding that the plaintiff was exercising a degree of care consistent with her duty in the premises, and that she has sustained the burden of proving a lack of contributory negligence.

It is not urged that there was any lack of notice to the defendant of the condition of the crosswalk; and it is in evidence that the place had been in the condition in which it was found on the day of the accident for a period of six months, and the defendant must have had constructive notice at least of the danger to which pedestrians were subject. It was also in evidence that other persons had tripped and fallen at this point, though it does not appear that any of them were injured. While it is urged with much of plausibility that the defect in the walk was not such as to charge the defendant with responsibility, under the authority of Beltz v. City of Yonkers (148 N. Y. 67), we are of opinion that the question was one of fact for the jury. The manner in which the street had been repaired after the tracks of the street railroad were removed, coupled with the evidence that other persons had tripped at this same place, and that the plaintiff was injured at this point while conducting herself in a reasonably prudent manner, are all circumstances from which the inference of negligence may be drawn ; and it was proper for the


[Vol. 38.

jury to say whether the condition of this walk was such as to constitute negligence on the part of the defendant.

It is not necessary to discuss the case further. The questions were submitted to the jury without exception, and, under the circumstances developed by the evidence, we are satisfied that the judgment should be affirmed, with costs.

Judgment and order unanimously affirmed, with costs.

ROBERT B. HULL and Others, as Executors of and Trustees' under the Last Will and Testament of JOSEPH WILD, Deceased, Respondents, v. CHARLES PEARSON and Others, Respondents, Impleaded with NEW YORK BAPTIST UNION FOR MINISTERIAL EDUCATION, Appellant.

Subscription the continuance of work in one of the departments of a seminary not presumed to be at the subscriber's request-effect of the payment of a part of the amount subscribed.

The president of a theological seminary, in making an appeal for assistance for the German department of the seminary, stated that the "English department of the seminary, having its own heavy burdens, cannot any longer make up this deficit, and a great curtailment, if not an absolute close, of the German work is threatened if money from other sources cannot be obtained," and annexed to such appeal the following: "Subscription. We, whose names are here subscribed, promise to pay, within six months from the time of our subscription, the sum set opposite our names, to Professor H. M. Schaffer, for the work of the German Department of the Rochester Theological Seminary in training young men for the gospel ministry."

Held, that the mere fact that the German department, which had been in existence for forty one years before the appeal was made, was continued after one Joseph Wild had signed the subscription as follows: “Jos. Wild, $5,000,” raised no presumption that such continuance was in pursuance of a request made by Wild;

That the fact that Wild paid $1,000 of his subscription before his death did not create a liability upon the part of his estate for the remaining $4,000, in the absence of evidence that the corporation maintaining the seminary had made any change in its plans involving new duties and obligations based upon the subscription as a whole.

APPEAL by the defendant, the New York Baptist Union for Ministerial Education, from so much of a judgment of the Supreme

App. Div.]


Court in favor of the plaintiffs and certain of the defendants, entered in the office of the clerk of the county of Kings on the 30th day of July, 1898, upon the report of a referee, as disallows and dismisses the counterclaim interposed by said defendant.

The action was brought to obtain a judicial construction of certain provisions contained in the will of Joseph Wild, deceased, and for the settlement of the accounts of the plaintiffs, as executors of and trustees under such will.

Thomas B. Brown, Jr., for the appellant.

James C. Foley and Henry G. Atwater, for the respondents. WOODWARD, J.:

Joseph Wild, late of the city of Brooklyn, departed this life on the 3d day of September, 1896, leaving a last will and testament, bearing date November 16, 1894, with codicils; and this will and codicils were duly admitted to probate. Robert B. Hull, Charles H. Dutcher and Henry A. Powell were named as executors and trustees of the trusts created by the will. The will in question provided for a legacy of $10,000 for the defendant the New York Baptist Union for Ministerial Education, a domestic corporation, and the said Baptist Union interposed a counterclaim demanding $4,000, the balance of an alleged subscription of $5,000 made by the plaintiffs' testator. The referee before whom the case was tried dismissed the counterclaim, and the question is presented on this appeal whether the alleged subscription was valid in law, the facts being practically undisputed.

The chief agency, it seems, of the New York Baptist Union for Ministerial Education is the institution known as the Rochester Theological Seminary. This seminary has two departments, known as the English department and the German department. In April, 1895, the president of the theological seminary undertook to raise funds for the purpose of supporting especially the German department, and to this end wrote in a little book an appeal for assistance for the German department of the Rochester Theological Seminary, addressed to the general public, as well as to members of Baptist churches, giving some details as to the work of the department, and stating that it had been insufficiently endowed; that there had been an annual deficit of some $5,000, which the English department of

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