| N.Y. Sup. Ct. | May 10, 1889
Appellant is a municipal corporation in virtue of chapter 335 of the Laws of 1869. Section 12 of the act provides for the items that, “shall be included in the ordinary expenses of the village,” and in the seventh subdivision are found these words: “(7) For the necessary advances in making or repairing sidewalks, or abating nuisances, after such proceedings have-been had, as to make such expenses a lien upon real property, upon the failure of the owner to comply with the directions of the trustees in respect, thereto.” Also subdivision 15: “For the necessary expenses of doing any act expressly authorized by law. * * * ” Section 27 provides as follows: “It shall be the duty of the trustees, and they shall have the power.. * * * ” Subdivision 14: “To direct the manner and superintend the making and repairing of sidewalks and cross-walks in said village.” Subdivision-15: “To exercise the duties of commissioner of highways of towns within the limits of the village, so far as those powers and duties are consistent with-other parts of this act, and are applicable to the village. * * *” And in-section 32 of the act we And the following words: “Sec. 32. The board of trustees shall have the power to cause any sidewalks in said village, which have not already been flagged and curbed, to be raised, leveled, graded, curbed, and flagged, graveled or planked, in such manner, and with such material, as-they may deem proper; and to cause any sidewalks which have been flagged or curbed, or in any other way made, to be relaid, amended, or repaired, whenever they may deem it necessary, ” etc. And in section 33 a further provision is inserted, viz.: “And the said trustees shall, within the bounds of said village, have all the powers of commissioners of highways of towns, and shall-perform all such duties which by law are enjoined upon commissioners of', highways, and be subject to like restrictions. * * *” Section 45 provides as follows: “It shall be the duty of the street commissioner * * * to keep in good condition the streets and highways within the boundaries of' his district, subject to the direction of the trustees, as herein provided..
2. Whether the sidewalk where the plaintiff received the injuries was out of repair, and the defendant had actual notice thereof, or it had remained but of repair sufficient time to give the defendant constructive notice thereof, and whether the plaintiff was free from contributory negligence or not upon the occasion of receiving the injuries, were questions of fact which were proper for the jury, and they were severally submitted, clearly and carefully, by the trial judge, “and there is nothing in the evidence which requires us to disturb their verdict upon those questions.” Quinlan v. City of Utica, 11 Hun, 218. We think the fact that the sidewalk in question was inspected by Up-son, the chairman of the sidewalk committee, about the 1st of September, 1883, and considered by him in a “satisfactory condition,” does not of itself constitute a defense. It was evidence for the jury to consider, and in respect thereto the trial judge very properly instructed the jury that the trustees “were bound to use reasonable diligence in discovering whether this walk was out of repair, and it is a question of fact for the jury to say whether, if they did what they claim, they used due diligence or not. I cannot, as a matter of law, hold that they did use due diligence.” We think the languáge of the charge was appropriate.
3. When Doyle was describing the condition of the sidewalk in 1883, he .stated that he was walking with his son-in-law, and tripped and fell. That testimony seems to have been received without objection. He was then asked to tell what occurred. A general objection was made to that, and it was overruled, and the witness answered that his son-in-law “stepped a little quicker than me, and stepped on the end of a plank, and it tipped up, and caught my foot, and pitched me off. It was along Johnson’s lot, about twelve feet from his west line. During the summer I noticed loose boards in the walk along the east part of Johnson’s lot, near the hydrant, along in August.” This witness also testified that he gave “notice to the trustees of the condition of •this walk.” Hesays: “I went toMr. Remick. He told me he had nothing to do with the sidewalks. He told me to go to Mr. Upson, and I went right over and told him. He was one of the trustees. He said: • I will attend to having it repaired.’ They were never attended to,—never anything done to them after I saw it.” When George Leigh was testifying, in the course of his cross-examination, he said: “I have seen loose boards there on more than ■one occasion. This time I went over is all I can remember, after I fell. I can’t tell whereabouts this board was. I am certain it was on Johnson’s walk, because there is where I saw loose boards, and on the other walk I never saw any, to my knowledge. As near as I can get at it, it was the latter part -of April. I didn’t complain to anybody of this walk.” Thereupon the defendant’s counsel remarked that the evidence “ought to be stricken out as too remote.” The motion was denied, but no exception was taken to the ruling. When Morris ICilts was giving his testimony, he said that he worked on the street in question under the street commissioner, and that at “some time in
• 4. We think the court committed no error in refusing the nonsuit of plaintiff; that the verdict is supported by the evidence, and ought not to be disturbed. Judgment and order affirmed, with costs.
Merwin, J., concurs.