
    Alice M. Masters, Resp’t, v. The City of Troy, App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed December 31, 1888.)
    
    1. Negligence—Municipal corporations—When liable to a person INJURED BY SLIPPING ON ICE ON SIDEWALK.
    Where there has accumulated a mass of rough ice in some one place upon the sidewalk, which has been there for a time long enough to give constructive notice to the city, then the city may he liable to the person injured by slipping thereon. But when the ice on the sidewalk is the result of some rain or snow which has made all the sidewalks slippery, then it is not negligence on the part of the city not to remove it.
    2. Same—Evidence—Competency of.
    On the trial of the action to recover damages for injuries sustained by slipping on an icy sidewalk in the defendant city, it was competent for a witness, in behalf of the plaintiff, to testify that subsequent to the accident, and on the same afternoon, she slipped on the ice at the same place, and also that she saw another person slip about the same time at that place. It was also competent to show by a witness that three or four days previous to the accident he also fell on the same sidewalk. Following, jpomfrey v. Village of Saratoga (5 N. Y. State Ilep., 802; 104 N. Y., 469).
    3. Same — Evidence — Competent to show position of slippery sidewalk WITH REFERENCE TO PUBLIC BUILDINGS.
    It was proper, as bearing upon the question of constructive notice, to inform the jury of the situation of the place where the accident happened; and of its relative position to such a public building as the city hall.
    4. Same—Filing of claim with comptroller of the city of Troy— What does not amount to discrepancy.
    It is not intended that the claimant in the claim filed with the comptroller of the city of Troy shall stale the exact spot where the accident happened at the peril of being defeated in his action if he makes a mistake of a few feet. In this case sixty-five feet was not such a discrepancy as tO' entitle the defendant to have the plaintiff non-suited.
    6. Same—Practice on trial—Not necessary to show the officer who-neglects duty.
    In an action for the neglect of the city to keep its streets in good condition, it is immaterial whether the city neglects this duty through one officer or another, and it is not for the plaintiff to show what officer was charged with the duty.
    Appeal from a judgment in favor of the plaintiff entered upon a verdict rendered by a jury at the Rensselaer county circuit.
    On the 21st day of December, 1882, the plaintiff, a married woman, came to the city of Troy, to purchase Christmas presents for her children. At about half-past twelve o’clock of that day, while traveling' along on the southerly sidewalk of a public street in the city, known as “Broadway,” about sixty-five feet west of Third street, she fell upon á patch of ice and received a severe and probably a permanent injury. The injury to the plaintiff was in her hip.
    
      H. A. Parmenter, for app’lt; A. C. Comstock, for resp’t.
   Learned, P. J.

This is an action to recover a compensation for injuries sustained by slipping on an icy sidewalk on the south side of Broadway, in Troy.

The defendant’s first objection is that the court permitted a witness to testify that subsequent to .the accident, and the same afternoon, she slipped on the ice at the same place, and also that she saw another person slip about the same time at that place. Also that another witness was permitted to testify that three or four days previous to the accident he also fell on the same sidewalk.

Now this evidence was given to show the actual condition of the sidewalk; that it was slippery. Of course this did not touch the question whether its condition was caused by natural causes or otherwise. It merely showed, or tended to show, what the condition in fact was. It was certainly competent to show that the walk was slippery. And the satisfactory proof of that was that persons had slipped upon it. We think that decisions have established the competency. of this evidence. Quinlan v. Utica, 74 N. Y., 603; Pomfrey v. Saratoga, 104 id., 469; 5 N. Y. State Rep., 802.

The defendant also objected to proof of the distance between the city hall and the place where the accident happened. The residence of the city engineer and the way he went to his office. It is not claimed in this case that there was actual notice of the obstruction. As to constructive notices it has often been urged, and with force, that a city like Troy has many miles of sidewalks, and hence a difficulty or impossibility arises as to knowledge by the authorities of the actual condition of all the sidewalks. Hence, in judging of the constructive notice, it- seems proper to in-' form the jury of the situation of the place where the accident happened and of its relative position to such a public building as the city hall.

As to the residence of the city engineer, it proved after-wards that the witness (who testified to his resideiice and his course of walking) was not engineer at the time of the accident. So that the testimony had no weight on this point whatever.

The next point is that plaintiff should have' been non-suited by reason of a discrepancy between her claim as filed with the commissioner and her proof on trial. The claim stated that she was injured by falling on the_ sidewalk, south side of Broadway, between Second and Third streets, near the corner of Broadway and Third. The proof was. that she fell on that sidewalk about sixty-five feet from that corner. There is no discrepancy here. It is not intended that the claimant shall state in the claim the exact spot where the accident happened, at the peril of being defeated in his action if he make a mistake of a few feet. Sixty-five feet are less than the front of three ordinary city houses.. One who was within the width of three houses of a corner would not be accused of falsehood if he said he was near the comer.

The defendants, also, except to the refusal of the court to charge the first request. On examining the charge it seems to us that the court had so fully stated the law just as the defendant asked that the repetition would have been needless.

The next request was that the duty of inspecting the streets was limited to the “ city superintendent.” The duty of keeping streets in good condition, whatever that duty be, rests on the city. This action is for the neglect of the city. It is immaterial whether the city does, or neglects, this duty, through one officer or another. It was not for the plaintiff to show what officer was charged with the duty. ¡Nor was it material that there should be any charge on that point.

We see no error in the charge.

The remaining question arises, on the other alleged grounds of non-suit, that there is no sufficient evidence of negligence or of notice actual or constructive.

The accident occurred between half past twelve and one,, December twenty-first. That morning there had been about one-tenth of an inch of snow, equaling one-hundredth of rain. On the fifteenth there had been one-tenth of an inch of snow; hardly any after that; two-tenths on the thirteenth, and the same on the tenth.

On the tenth and eleventh, thirteenth and fourteenth, the thermometer was above freezing at its maxium.

The ice was rough and uneven and looked like old ice; in bunches; hard and rough; three or four inches in places. It extended the width of the sidewalk; most all the way around the corner, all around the Warren residence; had been so a week or ten days.

Mr. Warren, the owner of the property usually moved into his house between the tenth.and second of December, hut could not tell what day he moved in the year of the accident, and could tell nothing as to the condition of the sidewalk. His employees, who had been generally directed by him to keep the sidewalk clean could not say that there was not ice there in December, 1882. There certainly was Evidence to justify the jury in finding that there had been ' an accumulation of ice at this place for several days.

It is not altogether easy to determine what the law is on this subject under recent decisions. But from a comparison of those decisions we think the rule must be that where there has accumulated a mass of rough ice in some one place upon a sidewalk which has been there for a time long enough to give constructive notice to the city, then the city may be liable. But that when the ice on the sidewalk is the result of some rain or snow which' has made all the sidewalks slippery, then it cannot be negligence for the city not to remove it.

In that view of the law, this case was one for the jury. The condition of the sidewalk was not one common to all the sidewalks, that is, it was not one of those unavoidable conditions that occasionally exist in this climate. But it was (of at least there was evidence that it might have been) the result of inattention on the part of, the city to the .gradual accumulation at a spot shaded from the sun, of ice formed by alternate melting and freezing.

We do not think it necessary to discuss and quote from the recent opinions. They are familiar to the profession. And if there still- remains any doubt as to the exact rule of law which has been established, it must be for the higher court to settle it.

Judgment and order affirmed, with costs.

Lardon, J.

It was old ice, “bunchy,” uneven and “irxegular,” and therefore the jury might find that, it ought to have been attended to, and that too before it became old. .1 concur.

Ingalls, J., .concurs.  