Briel v. City of Buffalo , 90 Hun 93 ( 1895 )

BRADLEY, J.

After daylight had disappeared in the evening of June 26, 1800, the carriage in which the plaintiff was riding-southerly on Niagara street, in the city of Buffalo, was overturned, and she was injured. The accident was caused by a pile of earth which had been deposited in the street, by the procurement of the owner of the adjacent premises, for the purpose of having it taken onto his lot, upon which some of the earth drawn there had been conveyed by wheelbarrows. The recovery on the former trial was not supported, because it did not then appear that the earth drawn and deposited at that place in the street on any day prior to the evening of the injury remained in the street any night before that in question, and therefore no negligence was imputable to the defendant upon the evidence. Breil v. City of Buffalo, 144 N. Y. 163, 38 N. E. 977. Upon the trial now the subject of review, further evidence was given tending to prove that the pile of earth had remained there in the street three or four days and nights, continuously, up to the time of the accident. The place in question is in a populous portion of the city, and Niagara street, on either side of the street-railway tracks, is much used for vehicles. And the length of time which the jury were, by the evidence, permitted to find this pile of earth had remained there, was such as to enable them also to find that the defendant was chargeable with notice of the obstruction in the street, and therefore with negligence in permitting it to so remain there up to the time of the occurrence in question. Kunz v. City of Troy, 104 N. Y. 344, 10 N. E. 442. The conclusion was also warranted by the evidence that the plaintiff was free from the imputation of contributory negligence.

The questions arising upon the conflict in the evidence, and all other questions of fact, were fairly submitted to the jury, and their verdict is supported by the evidence. There was no error in the rulings at the trial to the prejudice of the defendant. The judgment and order should be affirmed.