McNally v. . City of Cohoes , 127 N.Y. 350 ( 1891 )

This action was brought to recover for personal injuries sustained by the plaintiff in falling upon a sidewalk, in the city of Cohoes, on the 7th day of February, 1885.

The statute provides that "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.)

Prior to the passage of this act, the liability of the municipality could be established by showing constructive notice; and the evident purpose of the act was to prevent a recovery unless actual notice be shown. The words "shall have been given" are used, but it is not specified how or in what manner notice shall be given. The word "notice" as used in this connection imports information, intelligence or knowledge. If the defendant's superintendent had actual information, intelligence or knowledge of the defective, unsafe or dangerous condition of the sidewalk, it would seem to answer the requirements of the statute. Actual notice may be established by evidence either direct or circumstantial the same as any other fact. The trial court appears to have been of the opinion that the evidence did not justify a finding that defendant's superintendent had actual knowledge of the condition of the sidewalk at the time of or the place where the plaintiff fell.

It, therefore, becomes necessary to determine whether the evidence is of that character which requires a reversal.

The plaintiff tells us that she was upon the sidewalk upon Factory street; that it was covered with a glare of ice its entire width up to within a foot of the building, and that it extended lengthwise of the walk about five feet; that she saw it, stopped and looked at it, then stepped upon it, and after walking about three feet upon the ice she slipped and fell, breaking her wrist. Evidence was given tending to show that ice had been upon the walk for about three weeks; that on the fourth and fifth there was rain, snow and sleet turning cold on the morning of the sixth; the temperature going down below zero; that the defendant's superintendent had been seen to pass over the walk ten or twelve days before the accident, and again about a week before. He was then called as a witness on behalf of the plaintiff and himself testified that he had passed through the street several times before the accident, but did not remember the dates; thinks he may have passed through the street after the first of the month; that when he passed through the street there was ice upon the sidewalk, the same as on every other walk in the city; that the ice was covered with ashes on that part on which the people traveled.

This is the evidence in substance bearing upon question of actual notice. It will be observed that it fails to show any knowledge on the part of the superintendent as to the condition of the walk after the rain and sleet on the fifth and the freezing on the morning of the sixth. We do not understand his testimony to be controverted; and if, as testified by him the walk was covered with ashes prior to the storm of the fourth and fifth, it is quite apparent that there was a material change in the condition of the walk thereafter, rendering it dangerous if it was as described by the plaintiff at the time of her fall on the morning of the seventh. (Taylor v. City of Yonkers,105 N.Y. 202; Harrington v. City of Buffalo, 121 N.Y. 147.)

These views render it unnecessary to consider the question as to whether the defendant was guilty of negligence, or whether the plaintiff upon her own showing was guilty of contributory negligence in going upon the ice after observing its condition.

The judgment should, therefore, be affirmed with costs.

All concur, except POTTER and VANN, JJ., dissenting.

Judgment affirmed.