McNally v. City of Cohoes — 25 N.Y. St. Rep. 65

Majority

p. 65

Margaret McNally, App’lt, v. The City of Cohoes, Resp’t.

(Supreme Court, General Term, Third Department,

Filed July 6, 1889.)

Headnote

1. Negligence — Cohoes (city of)—Municipal corporation—Ice and snow on sidewalk—Notice—Laws 1881, chap, 183, p. 227.

Under Laws 1881, chap. 183, p. 227, to charge the city of Cohoes with liability for injuries sustained by a person falling on a street rendered dangerous and slippery by ice or snow, actual notice of the unsafe condition of the street must have been given to the common council or superintendent of streets previous to the damage, nor will it be presumed that a superintendent by his own presence and observation of the place where the injury is sustained, obtained such actual notice.

2. Same—Constitutionality of statute.

Nor can it be said that the statute in demanding such certain proofs of the city’s liability, deprives the injured party of any constitutional right to relief.

Appeal by the plaintiff from a judgment in favor of the defendant entered upon a verdict directed at the close of the evidence by the court at the Albany circuit.

p. 66

The action was to recover damages sustained by the plaintiff by falling on an icy sidewalk on February 7,1885, on Factory street in the city of Cohoes.

The plaintiff, in the opinion of the trial court, was entitled to go to the jury upon the testimony in the case, except that there was not sufficient evidence tending' to show that “ the actual notice” required by the statute, of “the defective, unsafe, dangerous or obstructed condition of the sidewalk had been given ' to the superintendent of the streets.

Matthew Hale, for app’lt; N. O. Moalc, for resp’t.

The statute under which the nonsuit was granted is as follows: “The city of Cohoes shall not be liable for any damage or injury sustained by any person in consequence of any street, highway, bridge, culvert, sidewalk or crosswalk in said city, being out of repair, unsafe, dangerous, or obstructed by snow, ice, or otherwise, or in any way or manner, unless actual notice of the defective, unsafe, dangerous or obstructed condition of said street, highway, bridge, culvert, sidewalk or crosswalk shall have been given to the common council of said city, or the superintendent of streets and public grounds of said city, at least twenty-four hours previous to such damage or injury.” Laws 1881, chap. 183, p. 227, adding a new section to title 3, chap. 912, Laws 1869.

We assume that there was evidence sufficient to be submitted to the jury upon the question whether the superintendent of the streets, by his own presence at and observation of the place in' question at different times, more than twenty-four hours previous to the injury, had had ample opportunity to acquire actual notice of the condition of the sidewalk, and whether he did thus acquire it. No actual notice of the condition of the sidewalk was otherwise given him.

Previous to this statute, constructive notice would have sufficed. Constructive notice signifies that the party to be affected might reasonably have acquired or obtained actual notice, and that if he had not, it was his fault; and since he could not interpose his fault to protect himself, he was without protection against the charge of notice imputed by the circumstances. Constructive notice in case of defective streets is an inference of notice, drawn from official opportunity to obtain it, and from official obligation to be reasonably vigilant in keeping the public streets safe for travel.

The many cases, somewhat similar to the one now before us, which have been before the courts in which notice has been imputed to municipal corporations by juries, have not. infrequently excited the suspicion that municipal corporations are too liable to be unjustly convicted of negligence, and that the doctrine of constructive notice affords too dangerous a temptation to juries to make such corporations the indemnitors of the injured, under the august pretext that their negligence caused the injury. It is not improbable that such considerations, whether just or unjust, were in

p. 67

the mind of the framers of this statute. Its object is to exempt the city from liability, unless it has actual notice as distinguished from constructive, or possible, or imputed notice, which may in fact be no real notice. It requires that such actual notice must be given, not imputed, not derived, or obtained, or acquired. ¡Notice given implies a giver; some person who can state when and where and how it was given.

The contention of the plaintiff in effect is, that the jury might find, upon all the circumstances, that the superintendent of the streets must or ought to have obtained actual notice, and that he must be presumed to have obtained what he ought to have obtained, and therefore did obtain it, and that actual notice obtained is equivalent to actual notice given, and thus the statute is satisfied. But thus the statute might be overthrown. We think we should uphold it.

The counsel for the plaintiff urges that the statute, if construed as announced by us, is unconstitutional, because it deprives theplaintiff of her remedy against the party who has injured her, and does not afford her any other remedy. Assuming her constitutional right to a remedy against the party who has negligently injured her, this statute does not take it away. Its object is to demand such certain proofs of the city’s liability as shall tend to the more certain administration of justice. Possibly the statute goes to an unwise extreme against the citizen and in favor of the city. Absolute remedial justice cannot be guaranteed; the legislature may make such rules to secure it as its wisdom approves, subject only to the restraints of the constitution. Here there are difficulties on both sides. The citizen usually reposes upon official performance of duty, and is not awake to its neglect until he is injured. Perhaps the injury comes from such neglect, possibly from mere misfortune. His interest prompts him. to charge neglect, and in his contest with the city, justice may be implied by the sympathy of the jury with the citizen.

The courts cannot say that it is wrong for the legislature to impose upon the citizen as a condition of the liability of the city to him, that he, or some one of his fellows, shall give some notice of the danger which exists. It may be wise to enact that the government will protect the people if only some of the people will give notice that protection is needed. The people are many, compared with the few officials, and it may not be unreasonable that the people should be accorded the privilege to summon the officials to duty.

The judgment is affirmed, with costs.

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