6 N.Y.S. 842 | N.Y. Sup. Ct. | 1889
The statute under which the nonsuit was granted, is as follows: “The city of Cohoes shall not be liable for any damage or injury sustained by any person in consequence of any street, highway, bridge, culvert, sidewalk, or cross-walk in said city being out of repair, unsafe, dangerous, or obstructed by snow, ice, or otherwise, or in any way or manner, unless actual notice of the defective, unsafe, dangerous, or obstructed condition of said street, highway, bridge, culvert, sidewalk, or cross-walk shall have been given to the common council of said city, or the superintendent of streets and public grounds of said city, at least twenty-four hours previous to such damage or injury.” Laws 1881, c. 183, p. 227, adding a new section to title 3, c. 912, Laws 1869. We assume that there was evidence sufficient to be submitted to the jury upon the question whether the superintendent of the streets, by his own presence at and observation of the place in question at different
The counsel for the plaintiff urges that the statute, if construed as announced by us, is unconstitutional, because it deprives the plaintiff of her remedy against the party who has injured her, and does not afford her any other remedy. Assuming her constitutional right to a remedy against the party who has negligently injured her, this statute does not take itaway. Its object is to demand such certain proofs of the city’s liability as shall tend to the more certain administration of justice. Possibly the statute goes to an unwise extreme against the citizen and in favor of the city. Absolute remedial justice cannot be guarantied. The legislature may make such rules to secure it as its wisdom approves, subject only to the restraints of the constitution. Here there are difficulties on both sides. The citizen usually reposes upon otlicial performance of duty, and is not awake to its neglect until he is injured. Perhaps the injury comes from such neglect; possibly from mere misforture. His interest prompts him to charge neglect, and in his contest with the city justice may be imperiled by the sympathy of the jury with the citizen. The courts cannot say that it is wrong for the legislature to impose upon the the citizen, as a condition of the liability of the city to him, that he, or some one of his fellows, shall give some notice of the danger which exists. It may be wise to enact that the government will protect the people if only some one of the people will give notice that protection is needed. The people are many, compared with the few officials, and it may not be unreasonable that the people should be accorded the privilege to summon the officials to duty. The judgment is affirmed, with costs. All concur.