
    Sophia Foels, Resp’t, v. The Town of Tonawanda, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed January, 1894.)
    
    Town—Highway.
    Where the highway commissioner is in charge of the highway bridges of his town including those within the corporate limits of a village in such town, an action is properly brought against the town for an injury caused by a defect in the sidewalk of a highway bridge in such village.
    Appeal from a judgment of the supreme court entered in the Erie county clerk’s office on the third day of July, 1891.
    The action was to recover for personal injuries sustained by the plaintiff in August, 1888, caused by her stepping into a hole in the sidewalk of a bridge in the village of Tonawanda. One of the planks of the sidewalk was out which left a hole in the walk a foot wide and extending across the entire walk. The plaintiff, in company with her two sisters, was crossing the bridge in the day time. She was walking immediately behind her sisters, looking straight ahead, and did not see the hole until she stepped into it and was injured. There was evidence so show that the hole had been in the walk for two or three weeks immediately prior to the accident, ample time to justify the jury in finding that the highway commissioner had constructive notice of it; there was evidence on the part of the defendant controverting the claim of the plaintiff as to the existence of the hole for the length of time mentioned.
    There was evidence that a few day before the accident, the plaintiff was told of the hole in the bridge. She testified that she did. not see the hole before she stepped into it and did not know it was there.
    The verdict was for $4,500; it was the second verdict for that same amount, the first having been set aside by the judge before whom the case was tried, for the reason that in his judgment it was excessive.
    
      George T. Quinby and John K. Patton, for app’lt; W B. Simeon, for resp’t.
   Lewis, J.

The existence of the hole in the sidewalk of the bridge on one of the highways of the town for such a length of time as to justify the jury in finding the highway commissioner guilty of negligence, was sufficiently established by the evidence.

Whether the plaintiff’s negligence contributed to her injuries, was, under the circumstances proven, a question for the jury.

The defendant, highway commissioner, was in charge of the highway bridges of the town, including those within the corporate limits of the village of Tonawanda, the action was therefore properly brought against the town.

There does not seem to be any reason for reversing the judgment.

It should be affirmed.

Dwight, P. J. and Haight, J., concur.  