Fox v. Village of Fort Edward — 1 N.Y.S. 81

Majority

p. 81

Fox v. Village of Fort Edward.

(Supreme Court, General Term, Third Department.

May, 1888.)

Headnote

1. Municipal Corporation—Dangerous Condition of Sidewalks—Liability of Tillage.

The power denied to the persons entitled, under act N. Y. 1847, § 28, to vote to raise taxes for certain purposes, to direct use of such taxes for clearing sidewalks, is not in conflict with the power given the trustees by act N. Y. 1870, c. 29, independently of the resolution of the voters to keep sidewalks clear of ice; and the act N. Y. 1884, c. 308, conferring on the officers of villages created by special charter the same powers as are prescribed by general acts of incorporation, except so far as inconsistent with such special charter, applies to a village incorporated under" said act N. Y. 1847, and such village is liable for injuries caused by failure to keep its sidewalks clear of snow and ice.

2. Same—Dangerous Condition of Sidewalks—Liability of Village—Contributory Negligence.

Where plaintiff, while walking upon defendant’s ice-covered sidewalk, and holding to a fence, upon meeting another person, let go, and, in stepping to the right, slipped, and was injured by the fall, it is for the jury to determine whether the act of plaintiff was negligence.1

3. Same—Action for Injuries Received on Icy Sidewalk—Evidence—Contributory. Negligence.

Where plaintiff, upon cross-examination, testifies that he walked in the street before the accident, and not on the sidewalk where he sustained his injury, it is proper for him, on redirect examination, to explain that he returned to the sidewalk because he saw a man knocked down by a passing team; and it is for the jury to decide whether he was negligent under the circumstances.1

1 As to what is contributory negligence in the use of defective ways, see Hampson v. Taylor, (R. I.) 8 Atl. Rep. 331 , and note; Township of Crescent v. Anderson, (Pa.) Id. 379 ; Alline v. City of Le Mars, (Iowa,) 33 N. W. Rep. 160 ; Gordon v. City of Richmond, (Va.) 2 S. E. Rep. 727 ; Davis v. Town of Guilford, (Conn.) 11 Atl. Rep. 350 ; Kendall v. City of Albia, (Iowa,) 34 N. W. Rep. 833 , and note; Bridge Co. v. Bevard, (Pa.) 11 Atl. Rep. 575 ; Village of Ponca v. Crawford, (Mich.) 37 N. W. Rep. 609 .

Appeal from circuit court, Washington county.

Appeal from a judgment in favor of the plaintiff entered upon a verdict at the Washington circuit; also from the order denying motion for a new trial upon the minutes. The action was to recover for injuries sustained by the plaintiff in consequence of falling upon the ice upon the sidewalk upon Main street, in the village of Fort Edward, on the 23d day of January, 1885. The evidence tended to show that the sidewalk at the place in question was, and had been for many days previous to the accident, in a very dangerous condition.

Argued before Learned, P. J., and Ingalls and Landon, JJ.

L. H. Horthrup, for appellant. J. S. V Amoreaux, for respondent."

We think the verdict in this case is sufficiently supported by the evidence. It is objected that it was not shown under what act the defendant was incorporated, and therefore it was not shown that its incorporation imposed upon it any duty to keep its sidewalks in a reasonably safe condition for the public travel, when the obstruction is caused by snow and ice. The complaint alleged that the defendant “is a municipal corporation duly incorporated under the laws of this state, and was at the times hereinafter mentioned.” This allegation is admitted by the answer. Chapter 80 of theLaws of 1859 is entitled “An act to enlarge the bounds of the village of Fort Edward, make the same a separate road district, and conferring additional powers upon the trustees and taxable inhabitants of the village. ” That act speaks of the village of Fort Edward “as heretofore incorporated under the act entitled ‘ An act to provide for the incorporation of villages,’ passed December 7,1847.” This is a legislative declaration of the incorporation of the village, and the act extends its territorial limits, and confers upon it additional powers. The recitals in a legislative act are evidence against the party in whose favor the act was passed. Duncan v. Duboys, 3 Johns. Cas. 125 . This act, in connection with the admission of the answer, shows that the village was incorporated under the general act of 1847, and that additional corporate powers were conferred upon it by the act of 1859. The provisions of the act of 1847 Were declared inapplicable so far as inconsistent with the act of 1859. After 1859 the village was incorporated under the act of 1847, as modified by the special act of 1859. The village, therefore, had a charter peculiar to itself; that is, a special charter. If, as defendant alleges, it never thereafter became incorporated under the general act for the incorporation of villages, (chapter 29, Laws 1870,) then chapter 308 of the Laws of 1884 would apply to it. This act provides that the trustees and officers of any village in this state created by special charter shall have and “possess the same powers as are prescribed in any general act for the incorporation of villages within this state, except as such special charter may be in conflict with any provision or provisions of said general acts.”

The defendant claims that it had no funds to pay for clearing snow and ice from sidewalks, and no power to raise any; since, in this respect, it was limited to the funds for the purposes specified in section 28 of the act of 1847, and that clearing snow and ice from sidewalks is not one of them. This section also provides that “ the persons entitled to vote to raise taxes in such village may by resolution direct the trustees to cause to be raised, by a general tax, * * * taxes for the following purposes, and no other.” The defendant thereupon contends that the act of 1884 does not apply, since this provision, denying power to “the persons entitled to vote to raise taxes” to direct them to be raised for any other purpose, is in conflict with the provisions of the general village act of 1870 conferring power for purposes of keeping sidewalks free from snow and ice, and hence the trustees are still without power. But the power denied to the persons entitled, under the act of 1847, to vote to raise taxes, is not in conflict with the power given to the trustees independently of the resolution of the voters, and hence the act of 1884 does apply to the village of Fort Edward; and hence, also, the village is subject to the same liability for injuries caused by its neglect to keep its sidewalks reasonably safe for public travel as is imposed upon the villages incorporated under the general village act of 1870.

This conclusion disposes of many of the grounds of error urged by the defendant. The sidewalk where the plaintiff fell' was 'so icy and rounded that the plaintiff, as he passed along, kept one hand, as much as he could, upon the pickets of a fence which extended along the front of the lot next the walk. He knew it was dangerous, but he met a person coming in the opposite direction; and, as he conceived this person vras entitled to keep the inside of the walk, the plaintiff removed his hand from the fence, and stepped to

p. 83

his right to let this person pass, and, upon his first step to the right, he fell, and received the inj ury of whichhe complains. The court was asked by defendant to charge “that if, immediatelyprevious to and at the time he let go of the fence and stepped out, he knew there was ice there, and he also knew it when he entered upon the walk, he took the risk of passing, and cannot recover.” We think this request was properly refused. It implied that the act of the plaintiff in going upon the walk at all, or letting go of the fence to let another pass him, was wholly inexcusable under any aspect of the case presented by the evidence. At best, all the defendant could rightly claim was that the jury should consider and decide whether the plaintiff’s act was negligence or not. Two persons could not pass each other without one or the other taking his hand off the fence, and getting out of the other’s way. This sidewalk was certainly in a very unsafe condition, and had been for a long time. We see nothing in the case of Taylor v. City of Yonkers, 105 N. Y. 202 , 11 N. E. Rep. 642 , at variance with recovery in this case.

The plaintiff, upon cross-examination as a witness, testified that he had walked in the street before the accident, and not on the sidewalk. It was proper for him, upon direct examination, to show why he returned to the sidewalk, lest it should be urged against him that he had voluntarily incurred a danger which he had previously taken pains to avoid. He returned to the sidewalk because he had seen a foot passenger in the street knocked down by a passing team. It was undoubtedly proper for the jury to decide whether he was negligent in his choice between two dangers. We thinkthe judgment should be affirmed, with costs.

Learned, P. J., and Ingalls, J., concur.

Cases cited

Taylor v. City of Yonkers 105 N. Y. 202 N.Y. 1887-04-19 p. 83