#### MARY A. CLEMENCE, Plaintiff, v. THE CITY OF AUBURN, Defendant.

*Sidewalks—steepness of grade*of— *liability of city for injuries occasioned, by.*

The common council of the city of Auburn having established the grade for a portion of one of the sidewalks therein at three-quarters of an inch to the foot, it was found that, at the junction of the old with the new sidewalk, there was a difference of level of six inches; to obviate .which, the common council directed that the stone joining the new with the old sidewalk be laid on a slope of six inches in about three and one-half feet. The plaintiff, in passing along the said sidewalk, at a time when the said stone was covered with about one inch of snow, slipped thereon, fell and was injured. *Held,*that it was negligence on the part of the city to have this stone so laid, and that it was liable to the plaintiff for the injuries sustained by her.

Motion for a new trial on exceptions ordered to be heard in the first instance at the General Term, after a nonsuit directed by the court.

*George F. Comstock,*for the plaintiff.

A city is not liable for not constructing public improvements, and the question of whether they shall be constructed is a judicial discretion, but after having decided to construct and undertake the improvements, then the corporation acts ministerially, and is liable in damages to the person injured by the unskillful, negligent or unsafe construction of them, or failure to keep them in proper condition. (Shearman & Redfield on Negligence [3d ed., 1874], 183, § 124; 4 Abbott’s Digest [new ed.], 460, § 144; *The Rochester White Lead Co.*v. *The City of Rochester,*3 Comst., 463; *Huston*v. *The Mayor,*5 Seld., 163; *Conrad*v. *The Village of Ithaca,*16 N. Y., 158; *Weet*v. *The Trustees of the Village of Brockport,*16 id., 161; *Barton*v. *The City of Syracuse,*37 Barb., 293 ; affirmed, 36 N. Y., 54; *Lewenthal*v. *The Mayor of New York,*61 Barb., 511; Alb. L. J., Dec. 26,1874, pp. 401-403, article “Municipal Corporations.”) The city is bound to construct the sidewalks safely and properly, and to maintain them in such condition that they shall at all times be safe for the traveler. (2 Dillon on Municipal Corporations, 911, 712, §§ 789, 790, 791; Whart. on Neg. [1874], § 772; 4 Abbott’s Digest [new ed.], 285, § 35; *Wallace*v. *New York,*18 How., 169; *Morey*
      *387v. *The City of*Troy, 61 Barb., 589; *Allentown*v. Kramer, 73 Penn., 406; *Chicago City*v. Robbins, 2 Black, 422; Cook’s Highway Laws, 1870, p. 205.)

*James*Lyon, for the defendant.

Mullin, P. J.:

The plaintiff is a resident of the city of Auburn. ■ On the 3d February, 1872,’ she was passing along the sidewalk on State street, in said city, and slipped and fell and injured the ulnar nerve of the arm, by reason whereof -she has suffered a good deal of pain, and was for several months unable to perform her ordinary labor, and the arm was not, at the time of the trial, able to raise any considerable weight, and in the opinion of the physician, will never be restored to its normal condition.

Some four or five years before the accident, the owner of the lot in front of which this walk was laid, desired to relay and repair it, and applied to the chairman of the street committee of the common council to fix the grade of the sidewalk. A grade was established having a descent of three-quarters of an inch to the foot. It was ascertained that if this grade was continued to a certain point in the walk, there would be a difference of six inches between the new grade and the walk immediately adjoining. This fact being communicated to the chairman of the street committee, he directed that the stone which was used to fill up the gap between the new and old grades, be laid on a slope, having a descent of six inches in about three and a half feet.

On the day of the injury it had snowed in the morning so that at the time the plaintiff was passing along the walk in question, there was some half an inch of snow on the walk, which concealed the descent so that a person unacquainted with the grade would not be likely to observe it. The plaintiff not perceiving it stepped upon the stone in question, and immediately slipped and fell and was injured.

On the trial the defendant moved for a nonsuit on two grounds:

1st. Because the plaintiff was shown to have been guilty of negligence that contributed to the injury.

2d. That in establishing the grade of sidewalks, the common *388council act judicially, and if the walk is laid in accordance with the grade so established, the city is not liable.

On this ground the court nonsuited the plaintiff. The court directed the motion for a new trial to be heard in the first instance at the General Term.

By the charter of the city of Auburn the common council has power, and it is made their duty, to make, repair and preserve the highways, streets, lanes, alleys, bridges, side and crosswalks, and to cause them to be repaired from time to time. (Laws 1859, chap. 431.)

To make or repair sidewalks in said city, the common council is required to give notice in writing to the owners or occupants of lots in front of which sidewalks are required to be made or repaired, specifying the work to be done, and the manner and time' in which the work is to be done.

The repairs were made in conformity to the directions of the chairman of the street committee, whose power to give directions is not questioned-

It does not require argument to prove that a walk, having in it a stone laid upon the grade having a descent of six inches in the distance of three and a half feet, is dangerous to persons not aware of such grade. It is the duty of those charged with the construction of the streets and sidewalks, to see that they are so made and kept as to be safe for all persons passing along the same on foot, on horseback, or in carriages; and if this duty is not performed, and injury results from the omission, the municipality is liable to respond in damages to the person injured. *(Wallace*v. *The Mayor,*2 Hilt., 440; *Clark*v. *City of*Lockport, 49 Barb., 580.) The common council of Auburn may establish such grade for its streets as it sees fit, and it is not responsible for an error of j udgment in establishing such grade. *(Rochester White Lead Co.*v. *City of*Rochester, 3 Comst., 463 ; *Lloyd*v. *The*Mayor, 1 Seld., 369.) But this exemption from liability does not relieve the city from liability, if, in sinking or repairing, the street or sidewalk, it is left so as to be dangerous to the life or limbs of persons passing over it. (4 Abb. Dig., 460, §144; id., §153; *Barton*v. *Syracuse,*36 N. Y., 54.) Whether a walk shall be on the same level with the street, or a foot above or below, rests in the discretion of the common council) *389and they are not liable for error of judgment, if they have failed to establish the best grade. But they are liable if they leave a hole in it or a sudden descent, by reason of which persons are injured without fault or neglect on their part. *(Rochester White Lead Co.*v. *City of*Rochester, *supra.)*There is no immunity for such a wrong. Officers charged with the care and preservation of the streets and walks of a city, must be held to a rigid accountability when they omit to do whatever is necessary to protect the public from injury by reason of defects in such streets or walks. In no other way can life or limb be properly protected against gross neglect or the meanest parsimony.

The nonsuit must be set aside, and a new trial granted, costs to abide the event.

New trial ordered, costs to abide event.