p. 533October 20, 1879, at 6:30 A. m., the wagon, of Marks was standing in front of his store and the plaintiffs’ intestate was passing along the sidewalk, and the thills of the wagon were lifted and fastened up with a string or piece of clothes line; that, at the time, an ice wagon was coming down Attorney street, south from Houston to Stanton street, and at the same time another wagon, loaded with coal, was coming north up Attorney street from Stanton street.
The ice man did not want to give a chance to the coal man to pass, so he hit his horses to go as fast as they could, so as not to give the coal man any room. The street was narrow and the ice man’s wagon caught somewhere with the grocery wagon wheels and turned it around so that the shafts came down upon the sidewalk and struck the plaintiffs’ intestate with such force on his head as to cause his death.
The evidence showed that the wagon was in use two or three times every day, and that it was the habit of Marks to leave the wagon in that place when it was unemployed, with the shafts tied up in the manner described. The plaintiffs, by their testimony, claim to show that.the string or rope with which the thills were fastened, was not sufficiently strong to be used for that purpose. The defendants contended that the approximate cause of the accident was the fast and careless driving of the ice wagon which came in collision with the grocery wagon, and that the testimony was insufficient to authorize a jury to find that the city had notice of any unsafety or insecurity in the condition of the wagon, or that such insecurity had existed for so long a time, that notice thereof could be implied. The court, upon the trial of the case, dismissed the complaint, and from the judgment thereupon entered, this appeal is taken.
N. E. Chedsey, of counsel, for app’lts; David J. Dean, of counsel, for resp’ts.
This action was previously tried, and came before this general term upon appeal from a judgment rendered in favor of the plaintiff. Upon that appeal it was held that even though the city had no legal right to grant license to store or keep the wagon in the street, still its liability for the particular injury which caused the death of Cohen could not be sustained upon proof of the mere fact of granting license, as that fact was not the immediate cause of the injury, such injury having resulted from the negligent driving of the ice wagon, and the insufficient manner in which Marks had tied up the thills of his wagon.
It was further held, that to make the city responsible for the injury, some evidence tending to show knowledge on
p. 534its part or notice in some form of the insecure or careless mode in which the wagon was stored in the street, must be shown. Having in view the law thus laid down upon the previous appeal in this case, it is necessary to consider whether there was any evidence from which the jury would have been authorized to have inferred that the city had notice of the insecure manner in which the thills ' of Marks’ wagon were tied at the time of the accident in question. In considering this question, we must bear in mind the fact that this wagon was used two or three times during the day, and that the thills were tied up after such use. There is no evidence going to show that the same fastening was used upon every occasion. Upon the contrary, the only inference to be drawn from the evidence is, that it was not tied up by the same string or rope , upon every occasion. If this is the fact, then when can it be said that notice as against the city commenced to run. Each time, the thill was tied up was an independent and separate act, which when the wagon ivas used, the consequences of that act ended when the thills of the wagon were tied up anew; then responsibility for that act commenced. It appears from the evidence in this case that the wagon was in use on the day before the accident- happened; that the shafts were tied up that night; that this accident happened at half-past six the next morning.
Now even if the shafts were improperly secured, sufficient time had not elapsed between the putting of the shafts in this insecure position, and the happening of the accident, to justify the jury in finding, that the city had had notice. _ And notwithstanding the expression Contained in the opinion when the case was before this court ‘ ‘ that if the thills had been securely and properly fastened, as they ought to have been, the fastenings would not have been _ broken by the blow which turned the wagon partially around and threw down the thills with such violence as to occasion the fatal injury,” it would seem that in the securing and fastenings up of the thills, that the owner of the wagon had no right to anticipate the severe shock to which the fastenings were subjected by the wagon being run into as was described by the witnesses. It would seem that the cause of the accident was the negligence of the driver of the ice wagon and not, by the negligence of the owner of the wagon in not tying up the thills of his wagon with a rope sufficiently strong to stand such a shock.
The evidence in the case therefore seems to fail to show spell notice to the city as would justify the plaintiffs in recovering.
Judgment appealed from should be affirmed, with costs.
Daniels, J., concurs.
(dissenting).—I think the use of the street by the owner of the wagon was a continuous one and for so long a period as to establish constructive notice of such use by the city and of all the consequences which were likely to result from such use. The wayfarer is entitled to protection and a violation of this obligation should be punished whenever the city is chargeable with notice of an existing danger which ultimately does him injury.