Reich v. Mayor of New York

12 Daly 72 | New York Court of Common Pleas | 1883

Beach, J.

[After stating the facts as above.]—The disposition of this appeal, so far as the issues between the parties are concerned, is controlled by the question whether or not the evidence on plaintiff’s behalf made a proper case for submission to the jury. The appellants urge the negative, from the absence of proof showing ice to have been upon the sidewalk for a sufficient length of time to charge the city with constructive notice and consequent negligence in allowing it to remain. The legal principles governing the case were stated to the jury with great clearness by the learned judge who presided on the trial. No exceptions were taken to his charge, and those arising from his refusal to instruct the jury in accord with two propositions submitted by appellants’ counsel, will be hereafter considered. The case to me seems but little different from Todd v. City of Troy (61 N. Y. 506). In that case, as here, there was a leader from an adjoining house discharging water upon the walk, which froze and then thawed, as the weather was cold or warm. One witness on this trial testified: “The water came from the leader on to the sidewalk during the winter, and the ice on the sidewalk was caused by the water, which ran from the leader, freezing; ” another said, “ I saw water during the winter, prior to this accident, coming from that leader, freezing and remain frozen in front of that house.” To the question, “ Do you remember whether or not there had been ice formed from the water which had flowed there for several days prior to the accident,” the witness answered, “Yes, sir.” The response may be said to indicate only remembrance, but in construing it with what the witness said immediately before and after, it should be applied to the presence of ice rather than to his memory. Another witness who, prior to the accident, passed over the walk every day and sometimes twice, said, “ there was always ice and snow there in the winter time; I never knew it clean in any way.” I think this evidence was sufficient for submission to the jury, upon the question of the ice having been there long enough to charge the defendants with constructive notice and liability. Upon testimony substantially similar, the Court of Appeals, in Todd v. City of Troy (supra), said: “It was a question for the jury to decide whether it was negligence for the municipal authorities to permit this water to flow upon the sidewalk and thaw and freeze there and form ice, remaining there for some days.”

The exception to the ruling which admitted the city ordinance, is not well taken. The ordinance regulated the construction of leaders, and the testimony descriptive, of this one showed non-compliance with the law, making a nuisance which it was the duty of the authorities to remove after having actual or implied notice of its existence (Hune v. The Mayor &c. of New York, 74 N. Y. 264).

The learned judge properly refused the request to charge the jury so as to make the allowance of a reasonable time for an owner "of premises to clean the walk, a factor affecting the defendants’ liability. The liability of a municipal corporation is not based to any extent upon such a consideration ; all that was needful to charge the city was the existence of an obstruction long enough to give an implied notice of its existence. Reasonable time to remove after notice, express or implied, must be allowed. The unperformed duty of an adjoining owner does not shorten or lengthen the period the municipality is entitled to. Neither was the fact stated in the other request, of the occupant of the premises having theretofore promptly cleaned the walk, material. The issue between the parties related to an omission of duty on this occasion by the defendants. The walk having always before been cleaned, would not relieve the defendants, other facts imposing liability being shown; consequently the learned court was right in declining to instruct the jury to give the fact consideration as bearing upon defendants’ negligence.

In addressing the jury, the counsel for the plaintiff, as appears on the record, attempted to read from the report of Darling v. The Mayor &c. of New York (18 Hun 340), and upon objection being made closed the book. He then stated to the jury what had been decided in the Darling case, which he told the jury was on “ all fours ” with the case at bar. The counsel for the defendant asked the court to direct counsel to desist from this mode of summing up. The court declined, and exception was taken. In this there was, in my opinion, grave error. The undeniable right of the defendant was to have a verdict founded upon the evidence, and nothing outside the evidence. The province of counsel is to influence the verdict, not by statement of extrinsic and unproved facts, but by argument deduced from those appearing in proof. Comment upon those not in evidence is not rendered any more regular by their having been ruled out during the trial. Improper influence upon the jury is to be prevented, and the possible or probable potency of outside facts is not diminished or enhanced by a ruling of the court adverse to their admissibility (Gould v. Moore, 40 Super. Ct. 387; Koelges v. Guardian Life Ins. Co., 57 N. Y. 638).

The action of counsel was neither more nor less than stating what had been decided in another case, claiming it precisely similar to the one on trial. Nothing better calculated to influence a jury can be imagined than such reference to an adjudication. Desisting from reading the report was of no benefit when counsel instead resorted to his own rendition. The defendants may have had their rights passed upon under the strong influence of authority a jury would be likely to follow, and which rightfully had no more to do with the formation of their conclusion than the imaginative recitals of a French romance.

The argument that while counsel may not be permitted to read law to the jury from reported decisions or adjudicated cases, as evidence, but may use them in his address to the jury, by way of illustration, is too refined in distinction to meet my approval. The matter placed before the jury is objectionable; the mode of bringing it to their attention is of no importance, and works no cure of the evil.

Whether or not counsel continued his comments after objection, the ruling in his favor and exception, does not appear. Even if not, were persistence the test, enough is shown by the remarks after the objection was complied with by closing the volume. The injury had been done by the statement, and, while it might have been corrected by a different ruling, was allowed by the court to remain with apparent approval.

The judgment should be reversed, and a new trial ordered, with costs to abide the event.

Charles P. Daly, Ch. J., and Van Brunt, J., concurred.

Judgment reversed and new trial ordered, with costs to abide event.