[113 N.Y.S. 960] W. Smith O'Brien, for appellant.
M. A. Leary, for respondent.
Argued before McLENNAN, P. J., and SPRING, WILLIAMS, KRUSE, and ROBSON, JJ.
McLENNAN, P. J.
On the forenoon of January 12, 1907, the plaintiff, who was alone, was walking on the sidewalk on the north side of Seneca street in the defendant village. She was going from a store located easterly from her residence on said street, where she had been shopping, to her home. Next east of the residence of the plaintiff is the home of a Mr. Still. Next east of Mr. Still's residence is the residence of a Mr. Thomas, which has a frontage of 90 feet on the street. Still farther east is a blacksmith shop, and next east of it is the Brundage store, where the plaintiff was trading.
The plaintiff testified that while she was walking in front of the Thomas premises, which (it will be observed) extended for a distance of 90 feet, and she said:
" On that occasion I caught my foot in the walk, and it throwed my body forward, and in endeavoring to save myself I was thrown backwards, injuring my back and my foot. As I went backwards there was something cracked in my back, and I became blind and dizzy at that time."
And she further said:
" As I walked from the store that morning of the accident, I was walking along in a careful way and caught my foot in this hole in the walk, and it throwed my body forward, and in attempting to save myself I was thrown violently backward, and it cracked my back."
She further said:
" I caught my foot in a hole, my right foot. I caught the back part of my foot. It held my foot fast up to there. I did not drop the eggs [which she had purchased at the store and was carrying]. I did not fall clear down."
There is absolutely no evidence given on behalf of the plaintiff which identifies the place in front of the Thomas premises, where the accident occurred; neither is there a particle of testimony which in any manner describes the hole in which she says she caught her foot and, as she claims, caused the accident in question.
In the complaint it is alleged that she stepped--
" upon a loose plank or planks, and her feet went into a hole or depression and were forced under the next plank, and in her effort to prevent herself from [113 N.Y.S. 961] falling she wrenched and strained herself to such an extent that she injured her back and spine," etc.
But upon the proof made, as before suggested, there is absolutely no evidence which would indicate that the accident occurred in any particular place in front of the Thomas premises, and certainly there is no evidence which tends to describe the defect which the plaintiff claims existed in the sidewalk and which caused her injury. Whether such hole into which she says she stepped was a half an inch or two inches in depth, or what its length was or what its width was, is in no manner attempted to be described by the evidence in this case. It seems to me that, in order to charge the defendant with responsibility for the plaintiff's misfortune, she should have been required to have pointed out the nature or character of the defect in the walk which she claims constituted negligence on the part of the defendant, or ...