23 N.Y.S. 410 | N.Y. Sup. Ct. | 1893
This is an appeal from a judgment entered upon the verdict of a jury in favor of the plaintiff, and against the defendants, in an action for personal injuries alleged to have been caused through the negligence of the defendants. The plaintiff, in her complaint, alleges “that on or about the 11th day of December, 1886, and for a long time prior thereto, a dangerous hole or depression existed in the sidewalk of said Canal street, along its westerly side, nearly opposite a place called the ‘Tannery,’ into which hole or depression in said sidewalk water and snow were allowed to accumulate, and form into ice, rendering travel there unsafe and dangerous.” The plaintiff testified that on the night of the 11th day of December, 1886,, she fell upon ice at the place described in the complaint; that she visited the spot next morning, and found a glare of water ice, through which she could see the sidewalk; she claimed that there was a cracked or broken stone where she fell, in which the water had accumulated. There was snow upon the ground at the time, and the evidence is that for several days prior to the accident the weather had been such as
“It is alleged, as I said to you,—and it is upon that theory that an action must be maintained, if at all,—that there was a defect in the construction of that ditch on the southerly side of Gross street, at or about the point of its intersection with the westerly side of Canal street, so that the water, by reason of this defect, was discharged, not through the sewer or ditch on the westerly side of Ganal street, but, especially at the time of a heavy rain or melting of snow, a volume of water was discharged over Canal street, and allowed to congeal. Or, further, it is alleged that there was an obstruction or defect in that outlet; that it was permitted to be filled by an accumulation of ice, and other matter, so that the aperture or that cavity there designed for the water of Gross street, or from the southerly half of Gross street, to discharge from, could not go into that cavity or aperture, by reason of this obstruction, but, on the contrary, was discharged upon Canal street It is upon that theory that the plaintiff must succeed in this action, for if the ice existed there on Canal street,—if you find that ice did exist there at the time of this accident, and that was formed by reason of water, melted snow, running easterly from the slope of the land, the natural slope of the land lying to the west of Canal street; that that was the natural result or effect of water flowing from the westerly side, from the slope which has been described to you, if you And a slope of that kind existed,—then it was a condition of things for which this defendant could not be legally liable. And so, I think, this action depends upon the question of the construction of the ditch on Canal*412 street, on the westerly side, the construction oí the ditch of Gross street, on the southerly side, or of the obstruction of the outlet at the intersection of the two.”
Then, after charging the jury upon the question as to whether there was or was not a dangerous hole in the sidewalk on Canal street, and as to whether, as a matter of fact, there was ice ón the sidewalk on the 11th day of December, 1886, and also upon the principle that where there are two causes which may have produced the injury, for one of which causes the defendants are responsible, and the other for which they are not, it is incumbent upon the plaintiff to show that the accident happened as the result of that cause for which the defendants are responsible, the court proceeded to charge as follows:
“So you come back to the question, was this injury the result and consequence—a legitimate consequence—of the condition of the cavity or aperture at the junction of those two sewers, or rather at the place where the Gross street sewer was designed to empty into the Canal street sewer? Was-it the result of the imperfect construction of those in the first instance, or of the obstruction? That is the serious question for your consideration. It is-claimed upon the part of the plaintiff, as I have said to you, that it is improperly constructed, and that obstructions to the natural flow of the water-from Gross street sewer inc Canal street were permitted to exist, and were permitted to exist for such a length of time that negligence upon the part-of the defendants can be imputed.”
It will thus be seen that the case was principally tried and presented to the jury upon the question as to whether the defendants’ had been derelict in their duty in constructing and properly maintaining the ditch on Cross street, and that the question was presented to the jury as to whether the defect and obstructions in such ditch were the proximate causes of the plaintiff’s injury. This was-a departure from the plaintiff’s complaint. It was a different cause from that set forth in the complaint. It was a different and distinct charge of negligence from that alleged in the complaint. The complaint set forth one claim of negligence, and a different one was presented to the jury. The view which the trial court took of the case seems to me to be made perfectly clear in that portion of the charge in which the court stated that if the ice upon which plaintiff fell “was formed by reason of water, melted snow, running easterly from the slope of the land,—the natural slope of the land lying to the west of Canal street; that that was the natural result or effect of water flowing from the westerly side, from the slope which has been described to you, if you find that a slope of that kind existed,—then it was a condition of things for which this defendant could not legally be liable;” thus holding the defendants liable, not for the hole in the sidewalk, but for faulty construction and obstruction of the ditch. If the hollow or dangerous hole existed in the sidewalk, as alleged in the complaint, and water formed in it, causing the accident, it would be of no consequence where the water came from. Ho matter whether it came there by reason of negligence of the defendants, or not, if the dangerous hole existed by reason of the defendants’ negligence, that would fix their liability,—not the source from which came the
