Tompkins v. City of Oswego

Martin, J.

A municipal corporation is bound to exercise ordinary care and diligence to see that its streets are kept and maintained in a condition rendering them reasonably safe for travelers to pass over them. This duty extends to the entire width of the street, including the sidewalks, and to persons on foot as well as teams. Whether the defendant was guilty of an omission to perform this duty is one of the questions in t,his case. The court submitted to the jury the question whether the defendant was negligent in omitting to repair and properly maintain the railing which was erected along the side of the street where the accident occurred, so as to protect travelers from the danger of falling off the embankment along which the street ran. This railing had been out of repair some months, and the question whether the defendant had constructive notice of that fact was left to the jury. We think the evidence was sufficient to justify the court in submitting the question of the defendant’s negligence to the jury. Fitzgerald v. City of Binghamton, 40 Hun, 332 , affirmed 111 N. Y. 686 , 19 N. E. Rep. 286; Ivory v. Town of Deerpark, 116 N. Y. 476 , 22 N. E. Rep. 1080; Jewhurst v. City of Syracuse, 108 N. Y. 303 , 15 N. E. Rep. 409.

We are also of the opinion that whether the plaintiff’s intestate was free from contributory negligence was, under the evidence, a question for the jury, and properly submitted to it. There was considerable evidence introduced by the defendant which tended to show that the decedent was intoxicated at thq time of the accident, and that such intoxication did or might have contributed to or caused the accident which resulted in his death. On the other hand, the plaintiff introduced the evidence of persons who were present when the acci *373 dent occurred as to how, and under what circumstances, it happened, which tended to show an absence of contributory negligence. If it were admitted that the decedent was intoxicated at the time, that fact alone would not establish contributory negligence on his part. It would be, at most, a circumstance for the consideration of the jury, in connection with the other facts in the case. If the jury had found that the decedent was intoxicated, and that such intoxication contributed to the accident, it might have barreda recovery. Lynch v. Mayor, etc., 47 Hun, 524 ; Fitzgerald v. City of Binghamton, 40 Hun, 332 , 336, affirmed 111 N. Y. 686 , 19 N. E. Rep. 286. But the jury having found, upon all the evidence, that the decedent was free from contributory negligence, we think its verdict should be upheld.

We find no error in the refusal of the court to nonsuit the plaintiff because she failed to prove that the defendant had actual notice of the defect complained of. The contention of the defendant is that section 15, c. 127, Laws 1877, is applicable, and hence that such notice was necessary to a recovery by the plaintiff. That statute provides that the defendant shall not be liable for any injury sustained by a person in consequence of any sidewalk or crosswalk being out of repair, unsafe, dangerous, obstructed by snow, ice, or otherwise, unless actual notice of such condition shall have been given to the common council, the board of public works, or the superintendent of public works, at least 48 hours previous to such injury. The trial court held that that statute was not applicable to this case. It will be observed that the statute relates only to sidewalks and crosswalks, and does not relate to other defects in the street. We think the court properly held that the statute was not applicable. On the trial the court charged: “It was the duty of the defendant to protect the public under the circumstances of the case, and in the light of surrounding circumstances, from danger by the exercise of ordinary care and prudence to guard against it.” It also charged: “The burden [of showing intoxication] rests upon the defendant. The question of the effect of intoxication is to be viewed in the light of all the circumstances surrounding the accident.” The defendant’s counsel then said: “On the last proposition we think that the burden is upon the plaintiff to show the absence of negligence on the part of the plaintiff’s intestate.” To which the court replied: “The burden upon them is to show that the deceased was guilty of no act of negligence that caused or contributed to the injury. They have attempted to show that. Having attempted to show that, and you having shown his intoxication, it is for the jury to say whether that intoxication caused or contributed to the injury, and, if so, then he is not free from contributory negligence on his part. ” To this portion of the charge the defendant excepted. We do not think the exception well taken. When the whole charge is considered together, it was quite as favorable to the defendant as it was entitled to, and the jury could have been in no way misled thereby to the prejudice of the defendant. We have examined the several rulings of the court on the admission and rejection of evidence, to which our attention has been called in the appellant’s brief, but have found none that would justify a reversal or that require discussion. We think the case was properly submitted to the jury, that the evidence was sufficient to sustain the verdict, that there were uo exceptions that require a reversal, and therefore that the judgment and order should be affirmed. Judgment and order affirmed, with costs.