Allison v. Village of Middletown — 10 N.Y. St. Rep. 421

Majority

p. 421

Eliza Allison, App’lt, v. Village of Middletown, Resp’t.

(Supreme Court, General Term, Second Department,

Filed July 1, 1887.)

Headnote

Municipal corporation—Liability for accidents on lands adjacent to SIDEWALK.

The plaintiff brought this action to recover damages received by falling upon land covered with ice adjacent to the plaintiff’s sidewalk. The owner of said land had failed to place a fence between his land and the sidewalk. Held, that municipalities are not liable for injuries occurring upon lands of adjacent owners because of the icy condition of such lands, in the absence of proof that the municipality had exercised authority or supervision over it.

Appeal from a judgment entered upon the verdict of a jury in favor of the defendant at the Orange county circuit, and from an order denying a motion for a new trial on the judge’s minutes.

p. 422

The plaintiff slipped and fell on the ice opposite the apartments of a Mrs. Cannon, and received the injuries complained of. The sidewalk in front of the premises where plaintiff fell is seven feet wide, and the lands of Dougherty in front of his store-house ran down to the sidewalk line. The whole distance from the curb to the steps of the house was open and used by people as a walk. The sidewalk at that point was curbed, but not flagged; a common dirt walk; it was twelve and six-tenths feet from the bottom of the lower step attached to the Dougherty premises, to the inside of the curb; and it is five and sixty-five one-hundredths feet from the bottom of the lower step to the inside sidewalk line. Plaintiff fell somewhere between the line of the lower step and the curb line—just where she fell was a controverted question upon the trial.

Benjamin Low, for app’lt; T. A. Bead, of counsel; H. W. Wiggins, for resp’t; W. F. O’Neill, of counsel.

There were two questions of fact submitted to the jury below:

First. Whether the plaintiff fell within the limits of the street; and, •

Second. Whether the defendants were negligent.

The charge was unexceptionable and the evidence was ample to sustain the verdict.

It follows, therefore, if no error was committed in the admission or rejection of evidence in the progress of the trial, the judgment must be affirmed.

The plaintiff was not prejudiced by excluding the evidence offered to show constructive notice to the defendant of the icy condition of the street prior to the accident, as actual notice was conceded to have been received. The question to be determined was whether the defendant had done its duty .in making the place safe for foot passengers, and this issue was sharply presented to the jury in the charge.

It was also immaterial what the city had done in respect to flagging the place where the accident occurred, several years after the accident.

The request made to the judge to charge “that if the whole ground was open from the stoop to the curb and used as a common walk by the village, it is for the jury to say whether the village has not by long acquiesence accepted this ground from the steps to the curb as a common walk.” We think this was properly refused for the reason that the proof was clear and undisputed that the land belonged to Dougherty, and the village had never exercised any acts of ownership over it or held it out to the public as a part of the public thoroughfare. Dougherty had simply

p. 423

failed to place a fence between his land and the sidewalk. Municipalities are not held hable for injuries occurring upon lands of adjacent owners because of the icy condition of such lands, in the absence of proof that the municipality had exercised authority or supervision over it. Houfe v. The Town of Fulton, 34 Wis., 608 .

We have examined the other exceptions in the case and find no error sufficient to warrant a reversal of the judgment.

Judgment affirmed, with costs.

Barnard, P. J., and Dykman, J., concur.