Mosey v. City of Troy , 61 Barb. 580 ( 1872 )

By the Court, Parker, J.

This case differs from that of Durkin v. The City of Troy,(a) which was argued with it, and in which we have just granted a new trial, in this, that here is evidence tending to show that the ice upon which the plaintiff fell was an accumulation from the freezing of water flowing from a house conductor upon the sidewalk, and extending entirely across it.; that it had remained there long enough to warrant the jury in attributing negligence to the defendant for its continuance, and at the time of the accident it was covered with a light fall of snow, which covered the ice and concealed it from the plaintiff’s view as she attempted to walk over it.

It is well settled that in case of a village or city where the trustees or common council are made commissioners of highways, (as is the case of the city of Troy,) the corporation is liable for their negligence in not keeping the streets and sidewalks within the corporate limits in a condition safe for the use of passengers thereon. (Clark v. City of Lockport, 49 Barb. 580. Conrad v. Village of Ithaca, 16 N. Y. 153. West v. Village of Brockport, 16 id. 158, n.)

The question of negligence on the part of the defendant was, under the evidence, properly submitted to the jury, and on the part of the plaintiff there was no such manifest negligence as to call for a nonsuit. That question was also properly left to the jury.

(a) Ante, p. 437.

[Third Department, General Term, at Albany, January 2, 1872.

■ The court in this case avoided the error which occurred in the other case, and when asked by the defendant’s counsel to charge that “ if the obstruction complained of was plainly visible to the plaintiff, and if she could have seen it by the ordinary use of her senses, the plaintiff is not entitled to recover,” did so.charge.

On the subject of the necessity of actual notice of the obstruction being brought home to the defendant, the judge was right in refusing to charge that it was necessary, in the various forms requested by the defendant’s counsel, and put the case upon a ground sufficiently favorable to the defendant, in charging, as the defendant’s counsel requested, “ that the defendant was not liable, unless it appeared that the accumulation of ice at the point in question had remained so long as to make the obstruction public and notorious.

I see no ground in this case for disturbing the verdict, and no error of the judge, calling for a reversal of the judgment.

The judgment and order appealed from must be affirmed, with costs.

Judgment affirmed.

Miller, P, J., and Potter and Parker, Justices.]