
    Corbett v. City of Troy.
    
      (Supreme Court, General Term, Third Department.
    
    July 6, 1889.)
    1. Jury—Competency.
    Where a case is tried by 10 jurors by consent, it is a waiver of any objection to-the exclusion of a juror by the court on its own motion.
    2. Evidence—Opinion.
    In a suit for damages for personal injuries plaintiff can testify as to the condition of her health.
    3. Same.
    Evidence by plaintiff’s sister that “shelooked to be sick” is competent.
    4. Same—Competency.
    After it is stipulated that the charter of a city may be read in evidence by either party, there can be no objection to reading a part of it.
    5. Municipal Corporations—Public Streets.
    Under Laws N. Y. 1870, c. 598, tit. 6, § 4, (charter of Troy,) providing that all streets in the city which were or should thereafter be opened and used as such for' five years should be deemed public streets, it was for the jury to determine whether a street in the city was a public street.
    6. Same—Defective Streets.
    Plaintiff sued for injuries resulting from a fall caused by ice on a sidewalk formed from the overflow of a leaky hydrant on the other side of the street. The testimony was conflicting as to whether the temperature was such that the ice could have been for any time on the sidewalk. Held that, though the ice may have existed but a few"days, the city was liable in allowing an escape of water which would inevitably cause ice when the weather was cold.
    Appeal from circuit court, Rensselaer county.
    Suit by Bridget Corbett against the city of Troy for damages for injuries received by falling on an icy sidewalk. Judgment for plaintiff, and defendant appeals.
    Argued before Learned, P. J., and Landon and Ingraham, JJ.
    
      It. A. Parmenter, for appellant. James Jjansing, for respondent.
   Learned, P. J.

It appears by the case that it contains substantially the-whole of the evidence. Porter v. Smith, 107 N. Y. 531, 14 N. E. Rep. 446. One person was excused by the court on its own motion from sitting as a juror; he having stated that his opinion was that all these suits against the city for slipping on icy sidewalks should be stopped once and forever. The-defendant excepted. The court proceeded, by consent, with 10 jurors. If the court proceeded with 10 jurors by consent, this must have been a waiver by defendant of his objection to the exclusion of the juror above mentioned. He may have been the eleventh. And certainly a juror who had expressed that opinion in court was not indifferent between the parties.

The question to plaintiff as to the condition of her health is competent. One can know that he is in poor health without being a doctor. The statement by plaintiff’s sister that “she looked to be sick” was not improper. Several similar answers seem to have been excluded or stricken out.

In the case, after the plaintiff had offered in evidence the charter of Troy relating to the water department, it is said, “ Charter may be read by either party. ” Subsequently comes an objection by defendant to proving any of the statutes referring to the water-works. We see nothing objectionable in reading any part of the charter, especially after the consent above quoted. The charter of Troy provides: “All streets and avenues in said city which are now opened or shall hereafter be opened to proper use, and shall be used as such for five years continuously, shall be deemed and taken to be public streets and avenues. ” Chapter 598, Laws 1870, tit. 6, § 4; Chapter 129, Laws 1872, tit. 6, § 3. Under the decisions in Strong v. Brooklyn, 68 N. Y. 1; Requa v. Rochester, 45 N. Y. 129; Morse v. Troy, 38 Hun, 301, we think the court was justified in submitting to the jury in the manner he did the questions whether the place in question was in a public street. The evidence of an engineer that he had laid out the streets, and the evidence oí use, seems to bring the case within those decisions. The defendant urges that these words in that section of the charter, “opened or to be opened,” apply only to some official action on the part of the city. We think that the decisions above cited show that such is not the true construction. It is suggested by the defendant that it is not right that a private citizen should thus compel the city to accept streets. But that is a consideration for the legislature.

The remaining question is that of negligence of the city in not removing the ice. The testimony is not very satisfactory. The accident happened Monday morning, February 22d, on the north side of Tyler street. Tyler street, as laid out by the city, ran from Hudson street west to the river. From Hudson street it had been continued eastward by the owner of the property, on a map made for him some 25 years before the accident. Some houses had been built upon it, and on other connecting streets' on the same map. One Gleason, whose house was on the south side of the street, about opposite the place where plaintiff fell, had a hydrant of his own on his lot by his house. It is claimed by plaintiff that the water therefrom ran across the street, and froze on the south sidewalk, (so called,) and formed a layer of ice. :Some two inches of snow had fallen Sunday night, and was on the ice. The plaintiff did not see the ice because it was covered with snow, and thus fell. The plaintiff’s family used to get water at this hydrant. The testimony is ■that the water burst out across the road, and worked its way and struck the sidew-alk. There is testimony also showing that this ice had existed for several weeks. The north side of the road was lower than the south, and the street descended steeply towards the west. In opposition to this the defendant proves by the record of one who had observed the weather and temperature that on the 13th there was a heavy rain; that from that day to the 16th the thermometer was considerably above freezing; that the 16th and 17th was freezing weather, but not belowl9 degrees; the 18th and 19th were generally above freezing, and there was steady rain on the 19th; during the 20th it grew .cold, and snowed on the 21st. How, in order to make the city liable there must be constructive notice. It seems impossible with the heavy rain on the 13th, producing even a freshet, and with the changeable weather afterwards, and a steady rain on the 19th, that the ice on which plaintiff fell could have been on the sidewalk prior to the 20th. But, on the other hand, the hydrant js shown to have been leaking during the winter; and therefore, although this ice may have existed but a few days, yet the jury might have been justified in finding negligence in the city in permitting an escape of water upon the sidewalk, which would inevitably cause ice as soon as the weather became cold. This is not a case where the ice came from what one called natural causes, such as the freezing of rain or sleet. Here an escape of water was permitted through the winter. It might be harmless during warm winter weather, but it would certainly cause a dangerous place when the temperature should be below 32 degrees. There was constructive notice of the escape of this water, .and of its flowing on the sidewalk. And, knowing that a cold night might make this a cause of peril, the city might justly be found guilty of negligence by the jury. For these reasons we think the judgment and order should be affirmed, with costs.  