O'Reilly v. Village of Sing Sing ( 1888 )

Pratt, J

This is an appeal from a judgment entered upon a verdict of a jury, and from an order denying a new trial upon the minutes. The action was for personal injuries sustained by plaintiff by reason of falling into a hole in the sidewalk. The evidence was conflicting, but there was no such preponderance in favor of the defendant as to justify setting aside the verdict. All the questions were fairly and clearly presented to the jury in a charge as favorable to the defendant as the evidence warranted. The question of plaintiff’s negligence is a proper one for the jury. The place where he received his injuries was a public highway; and a person rightfully using it, without notice of any defect, had a right to assume it was reasonably safe for travel. Whether he was negligent in failing to see the danger was a question for a jury to determine, in view of all the facts and circumstances surrounding the transaction. The plaintiff fully described all that happened prior to the accident; and, if his testimony was to be believed, lie made out a case of due care upon his part. That the street was out of repair is proved by a preponderance of evidence. Upon the question of notice to the village of the defect, the evidence was conflicting, but it is ample upon the part of the plaintiff to sustain the verdict. It was a fair inference that the defect had existed for at least a week prior to the accident; and, considering all the circumstances, the inference of notice, as found by the verdict, must be upheld. We have examined with care the exceptions taken, and find no error sufficient to warrant setting aside the verdict. The charge, taken with the requests, was more favorable to the defendant than the law and facts warranted. The judgment and order must be affirmed, with costs.