Dempsey v. Mayor of New York

Beach, J.

[After stating the facts as above.]—The submission of specific questions to the jury on the trial was eminently proper. In actions of this class it tends to avoid verdicts resulting from sympathy or compromise, by directing the attention of jurors to precise questions of fact, leaving the application of legal principles with the court.

Where the special findings and general verdict are inconsistent, the former must control, and judgment be rendered accordingly (Code Civ. Pro. § 1188).

The learned counsel for the appellant claims the action of the court erroneous in setting aside the general verdict for plaintiff, and directing a verdict in defendants’ favor. This, at most, was an error of form, and was disregarded by the court in United States Trust Company v. Harris (15 Super. Ct. 75), although the setting aside of the general verdict was condemned. There would seem to be no difference in result between so doing and permitting it to stand with judgment ordered for the defendants. The record is not thereby materially changed.

The direction to find specially upon questions of fact rests in the discretion of the court, and an exception thereto is not available, unless the case be one where such proceeding is not authorized by the statute.

The first question related to the condition of the sidewalk where the accident happened. The jury found that foot passengers, by the exercise of ordinary care, could pass over the place in safety. This was equivalent to finding it to have been in a condition sufficiently safe for passage, to relieve the defendant from legal liability. The general verdict for the plaintiff was inconsistent with this special finding. The former upheld the caution of the plaintiff, and the latter may not be adverse to her upon that point. But although the evidence might show her to have been sufficiently careful, still, in answering the question, the jury settled a fact relative to the condition of the sidewalk legally conclusive in defendants’ favor.

No actual notice of the dangerous condition of the walk was shown to have been given to the public authorities. It was incumbent, therefore, upon the plaintiff to prove the place to have been in such condition for sufficient time to establish constructive notice. In this respect the submission of specific questions was a safeguard to the correct application of the law, while within the province of the jury to find the facts bearing upon the point. When these facts were thus settled, there remained but questions of law. In Todd v. The City of Troy (61 N. Y. 506), there was evidence tending to show the existence of the ice extending across the sidewalk of a much traveled street for the several days prior to the accident. The verdict in plaintiff’s favor was upheld. But if, notwithstanding the verdict, the obstruction had appeared by clear proof to have existed but four hours, I am constrained to think the ultimate result would have been different upon appeal. In the case at bar, the jury found the accumulation of ice and snow had not remained in its then condition for more than twelve hours prior to the accident. In my opinion, under this finding, it was right for the court below to hold, as matter of law, that no constructive notice to the public authorities resulted. Such notice is a legal inference from established facts (Birdsall v. Russell, 29 N. Y. 220).

The exception at folio 29 was not well taken. The length of time the ice and snow appeared to have been there was not a subject upon which the witness could properly give an opinion. It was for the jury to pass upon, enlightened by any description of the obstruction witnesses might give.

The action of the court had no effect upon the right of the plaintiff to move for a new trial upon the ground of insufficient damages. Had the general verdict been allowed to stand, and judgment directed for the defendant, the suggested proceeding could not have been taken, nor does it seem possible the jury could have been influenced in estimating the plaintiff’s damages by the specific questions.

The more .rational supposition is that the verdict was the outcome of those feelings of sympathy which, however creditable, under most circumstances, often produce injustice, if exercised by jurors when performing their important duties.

The judgment and order should be affirmed, with costs.

J. F. Daly, J., concurred.

Judgment and order affirmed, with costs.