44 N.Y.S. 942 | N.Y. App. Div. | 1897
Plaintiff instituted this action to recover damages on account of injuries received from a fall on a defective sidewalk on the west side of Franklin street, between Genesee and Court streets, in front of lands owned and occupied by the defendant, upon which the high-school building is located. Plaintiff was a trained nurse, and was dependent upon the compensation received by her for services rendered in that capacity. On the morning of Sunday, February 4, 1894, while on her way to church, and while proceeding on the sidewalk in front of the high-school building, she slipped and fell, and the result was a fracture of her left wrist, known as a “Colles fracture.” The evidence discloses that the plaintiff was proceeding carefully along this sidewalk, and was exercising such care and caution as a person of ordinary prudence would have exercised under the circumstances. She thus fulfilled the duty which the law imposed upon her in passing along the street. Evans v. City of Utica, 69 N. Y. 166. The vital question upon the trial was whether the city was guilty of negligence for the condition of the walk. It was incumbent upon the plaintiff to show by a fair preponderance of evidence that this walk was in an unsafe condition for use by those who had occasion to travel over it, and that by reason of such unsafe condition the injury complained of was suffered by the plaintiff. It was further incumbent upon the plaintiff, before she could recover for such injury, that she should also show, by a like preponderance of evidence, that the city had notice of the defective condition of the walk. There having been no actual notice to the city, it was necessary for the plaintiff to show that the defect, if one existed, had so existed for such a length of time that the jury could say that the city, in the active discharge of its duties towards the citizen, ought to have discovered and remedied the defect. Evidence was given by the plaintiff tending to show that this w'alk, at the point where the accident occurred, and for a considerable distance on either side of that point, was covered with ice and snow some four or five inches in depth; that this accumulation was higher in the center of the walk than upon either side; that the entire width of the sidewalk was in an icy and slippery condition; and that it was difficult to pass over the same without slipping and falling. This evidence is of a convincing character. It was so convincing to the jury that it found by its verdict that the walk was in the condition as contended for by the plaintiff. It was further shown on behalf of plaintiff that this condition had existed for some considerable time before the accident; one of the witnesses, a disinterested party, testifying that it had been in such a condition for about two weeks preceding that time. Upon this evidence the jury found that the city had constructive notice of the dangerous condition of the walk. There is evidence to sustain such finding, and the verdict of the jury should not be disturbed. It is true, the defendant produced evidence tending to show that the walk was in a safe and proper condition at the time of the accident. An examination, however, of the evidence of both parties, convinces me that the propositions submitted
The corporation counsel makes the claim that the plaintiff should have been nonsuited, and that she cannot maintain this action, for the reason that, previous to the commencement of the action, she did not comply with the statute requiring service upon the corporation counsel of notice of intention to commence the action, and of the time and place where the accident occurred. It appears that this action was first brought to trial in April, 1895, and the complaint was dismissed, by direction of the court, after such trial before the court and a jury. The dismissal was upon the ground that the notice of intention required by the statute had not been properly served upon the corporation counsel. An appeal from that judgment was taken by the plaintiff, and such judgment was reversed, and a new trial granted at general term; and the opinion will be found in 92 Hun, 438, 36 N. Y. Supp. 997. It appears from that opinion that the facts that the injury sustained by plaintiff was attributable to the negligence of the defendant, and that plaintiff was free from contributory negligence, were conceded at that trial, and that the only question there presented was whether the plaintiff had filed with the corporation counsel the requisite preliminary notice of intention to commence the action. After a full discussion of the question presented to the general term, it was decided by that tribunal that the notice given by plaintiff embraced ■ all that was requisite to comply with the provisions of the law respecting such notice. With that decision we are in full accord. The judgment and order should be affirmed, with costs.
Judgment and order affirmed, with costs. All concur.