Powers v. Village of Champlain — 49 N.Y. St. Rep. 457

Majority

p. 457

Matilda A. Powers, Resp’t, v. The Village of Champlain, App’lt.

(Supreme Court, General Term, Third Department,

Wiled November 22, 1892.)

Headnote

Municipal corporations—Negligence.

Proof that defendant did not remove the snow from its sidewalks; that ice had formed thereon; that its street superintendent had removed a stone and relaid it so as to leave a hole, and that plaintiff slipped on the ice and into said hole, is sufficient to uphold a verdict for the plaintiff on the question of defendant’s negligence.

Appeal from judgment in favor of plaintiff, entered upon a verdict. j

This action was brought to recover damages for injuries re-| suiting from a fall upon a sidewalk of one of defendant’s streets, which defendant had negligently permitted to become and remain dangerous on account of an accumulation of ice thereon, and on account of a hole caused by the removal by defendant’s street commissioner of one of the stones forming part of the sidewalk.

The following facts are established by the evidence:

The defendant, the village of Champlain, is a municipal corporation incorporated under the Laws of 1870, chapter 291. Church street, where the accident happened, is one of the principal streets in the village, and more people pass over it than over any other street in the village except one; it runs north and south. Center street runs east and west, and intersects Church street at the top of the hill known as “ Brisbin’s Hill.”

The walk on the east side of Church street is plank, except where it crosses Center street, and there it is of flat stones. On the north side of Center street, between the roadway and the sidewalk, is a gutter running under the cross-walk on Church street.

When the cross-walk was built the summer before the accident, a large stone forty-nine inches long and forty-four inches wide was placed over the gutter, and fitted right in the corner formed by the intersection of the cross-walk on Church street and the sidewalk on Center street, so that the upper surfaces of the stone and the walk were on the same level, and the stone was a part of the walk, and traveled upon as such.

p. 458

The gutter was from about thirteen to nine inches deep at this place.

The walk on the west side of Church street, opposite the place of the accident, was impassable by reason of the snow banks that were there, and which had not been shoveled out during the whole winter, so that the travel was all upon the walk on the east side. Snow had fallen and accumulated during the winter, and from the south end of the cross-walk down to the north end there extended a ridge of ice about a foot to eighteen inches wide on the top, and slanting down each side, caused by people walking over the snow, and thus packing it down as it thawed and froze during the winter.

The ridge of ice extended down entirely across the stone on which plaintiff fell, and was five or six inches thick at the top, and sloped to the edges of the stone.

About twelve or fifteen days before the accident, Oliver Robare, Sr., the street commissioner of defendant, took up the stone at the intersection of the walks.

Instead of replacing the stone in its proper position, he left it over a foot east from the stone on which plaintiff fell, thus forming a dangerous hole fourteen inches wide, forty-nine inches long, and nine inches deep, without any guard, covering or protection of any kind, between the two stones, and the sidewalk and ridge of ice and stone were suffered by the defendant to remain in that same condition up to the time of the accident

Two of the trustees and the street commissioner lived on Church street within three blocks of the place of the accident.

The plaintiff lived with her uncle, Edmund Lamountain, on the west side of Church street about 200 feet south of the place of the accident.

On the 26th day of February, 1891, about eleven o’clock'in the forenoon, the plaintiff on her way to school crossed Church street from her home to the sidewalk on the east side and walked down in the middle of the walk at an ordinary gait.

When upon the last stone of the crosswalk her right foot slipped from the ridge of ice into the hole and she fell and sustained the injuries complained of.

Royal Corbin, for app’lt; Shedden & Booth (L. L. Shedden, of counsel), for resp’t

This is an appeal from a judgment rendered upon the verdict of a jury, and from an order denying a motion for a new trial on the minutes of the trial judge at the circuit

The action was to recover for alleged injury to the plaintiff, claimed to have been caused by the negligence of the defendant in suffering its side and crosswalks to be out of repair and unsafe, by reason of which the plaintiff while lawfully passing over said sidewalk fell and was injured.

The defense was a denial of defendant’s negligence and an allegation of contributory negligence by the plaintiff.

The jury rendered a verdict for the plaintiff.

p. 459

We think the evidence sufficient to uphold the verdict of the jury upon the question of the defendant’s negligence.

And as the question of the contributory negligence of the plaintiff was in this case one for the jury, their finding should not be disturbed by this court on appeal.

The rule that all legal and legitimate presumptions from the evidence are to be indulged in to uphold the verdict, applies to this case. Schneider v. Second Ave. R. R. Co., 39 St Rep., 370 ; Hart v. Hudson R. B. Co., 80 N. Y., 622 .

We see no error in the rulings of the judge or in his charge for which the judgment can be reversed.

Judgment affirmed, with costs.

Putnam and Herrick, JJ., concur.