Dexter v. Village of Fulton , 86 Hun 433 ( 1895 )

HARDIN, P. J.

Judgment was entered upon the verdict on the 27th day of October, 1894, in the clerk’s office of Oswego county. A notice of appeal was prepared on the 10th of November, 1894, to the effect that the defendant appeals “from the judgment of the supreme court herein, entered in the clerk’s office of the county of Oswego on the 27th day of October, 1894, in favor of the plaintiff and against the said defendant.” No appeal is found in the appeal book from any order denying motion for a new trial. No order is found in the appeal book denying motion for a new trial. The case does not show that it contains all the evidence given at the trial. The appeal therefore brings up “for review only the exceptions taken on the trial.” Wright v. Vulcanizing Co., 76 Hun, 340, 27 N. Y. Supp. 1108.

1. Plaintiff’s complaint alleges that the “unsafe, defective, and dangerous condition of said bridge or culvert was caused by the negligent conduct of said village and its officers-in the management and care of its streets, bridges, culverts, and sidewalks.” It also alleges “that said bridge or culvert was defective, dangerous, unsafe, and out of repair, in the following respect or particular: The planks were rotten, loosely laid together, out of repair, weak, and unsafe.” And the complaint further alleges “that such unsafe, defective, and dangerous condition of said bridge or culvert was caused by the negligent conduct of said village and its officers in the management and care of its said streets and bridges, culverts and sidewalks.” And it also further alleges “that said bridge or culvert was dangerous, unsafe, and out of repair, in the following respect or particular: The planks were rotten, laid loosely together, out of repair, weak, and unsafe.” We think, if the defendant desired that the complaint should contain a more accurate description of the place where the injuries occurred, or the negligence of the defendant in respect thereto, its remedy was to have the complaint made more definite and certain. Sherman v. Village of Oneonta (Sup.) 21 N. Y. Supp. 137, affirmed 142 N. Y. 637, 37 N. E. 566.

2. In considering the liability of a municipal corporation in a case somewhat like this, it was said in Gorham v. Village of Cooperstown, 59 N. Y. 660, that “some neglect or omission of duty in repairing defects or removing obstructions must be established, in order- to charge the municipality with the consequences of any defects in, or obstruction of, the thoroughfares within the corporation.” And in Rehberg v. Mayor, etc., of New York, 91 N. Y. 143, it was said that the duty to repair “arises after actual notice of its existence, or after such a lapse of time as would justify the imputation of negligence, if the defect or obstruction had not been discovered, and what is such reasonable time is a question for the jury.” The doctrine of those cases was stated and followed in Sherman v. Village of Oneonta, supra. We think the evidence presented upon the trial tended to make out a case of negligence against the defendant, within the principles of the cases to which reference has already been had, and that the trial judge committed no error in refusing to non-suit the plaintiff. Nor do we think it was error to refuse to charge “that there was no evidence in the case of any notice to the village of the defect upon which the cause of action was predicated, and no evidence showing, or tending to show, how long the defect complained of had existed prior to the accident.” We think the comments of the trial judge in declining to so charge were proper. The case of Herrington v. Village of Phoenix, 41 Hun, 270, is , unlike the case in hand. In that case there was a plank displaced, and it was said, “It might have been displaced by a trespasser, or, accidentally, by the last team crossing the bridge before the accident.” And it was further said, “Nor were any facts tending to establish negligence on the part of defendant’s officers, except that at the time of the accident a plank was displaced,” given. In the case in hand, upon the evidence presented, it was for the jury to determine whether the defendant or its officers had been guilty of negligence in leaving the bridge in an unsafe and insecure condition. Hart v. Bridge Co., 80 N. Y. 622; Goff v. Village of Little Falls (Sup.) 20 N. Y. Supp. 175, and cases-there cited. In Pomfrey v. Village of Saratoga Springs, 104 N. Y. 465, 11 N. E. 43, it was said:

“They do not fill the measure of their responsibility, however, by acting simply when they have actual notice; but they owe to the public the duty of active vigilance; and when a street or sidewalk has been out of repair for any considerable length of time, so that by reasonable diligence they could have notice of the defect, such notice may be imputed to them.”

We have discovered no error in any of the exceptions taken by the defendant at the trial, and it follows that the verdict should be sustained. Judgment affirmed, with costs. All concur.