
    Margaret O’Connor, Respondent, v. City of Dunkirk, Appellant.
    Fourth Department,'
    March 8, 1911.
    Municipal corporations— negligence — injury through, accumulation in open gutter — evidence — resolution of common council — notice of claim.
    Where in an action against a city to recover damages for injuries received by a pedestrian who stepped into an open gutter which, between the crosswalk and the sidewalk, was ten and one-half inches wide and from three to five and one-half inches deep, the court has charged that the city cannot be held liable by reason of the peculiar construction of the gutter, it is error to allow the jury to predicate negligence upon the fact that the gutter during the winter had become filled with material which was only partially frozen, so as to fail to support the plaintiff when she stepped upon it. This, because there was no more difficulty in stepping across the gutter when filled with soft material than when empty.
    Under the circumstances aforesaid, it was error to allow the plaintiff to introduce in evidence a resolution of the common council stating in substance that the open gutterways were dangerous to pedestrians and should be eliminated. Under a notice of claim merely stating that the city was negligent in maintaining a public nuisance in the shape of an unprotected gutter and in failing to construct the drain and crosswalk properly, or to keep them in .repair and in a safe condition, the plaintiff cannot recover on the theory that the city was negligent in allowing partially frozen material to collect in the gutter.
    Appeal by the defendant, the City of Dunkirk, from a judgment * of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Chautauqua on the 18th day of August, 1910, upon the verdict of a jury for $4,000, and also from an order entered in said clerk’s office on the same day denying the defendant’s motion for a new trial made upon the minutes.
    
      Nelson J. Palmer, for the appellant.
    
      Thomas J. Cummings, for the respondent.
   Williams, J.:

The judgment and order should be reversed and a new trial granted, with costs to the appellant to abide event.

The action was for negligence. The plaintiff stepped into a gutter in the street and fell down, receiving injuries for which she has recovered. Various questions are raised here, the principal one being that the defendant was not chargeable with actionable negligence causing the injury. The street had a gutter running down the side. The crosswalk was carried across the street at an elevation which raised it two and seven-eighths to five and one-lialf inches above the bottom of the gutter, and it was stopped so as to leave a space of ten and one-half inches, over which the pedestrian crossing was expected to step in reaching the sidewalk. The plaintiff went over this crosswalk, and instead of stepping over the gutter to reach the sidewalk she stepped into the gutter, which was at the time filled with snow, ice, water and dirt, but not frozen so as to hold her weight. Very likely it had the appearance of being hard and frozen, and the plaintiff expected she could step upon it and not go to the bottom of the gutter. The court charged the jury that the defendant was not chargeable with negligence by reason of the form of construction of the street, gutter and crosswalk, but permitted the jury to find there was negligence in allowing the gutter to become filled up with material not hard or frozen so as to bear up the pedestrian crossing over who stepped into rather than across the gutter. I do not think actionable negligence could be predicated upon such a ground. The accident occurred in the forenoon, in broad daylight, early in the month of March. There is liable to be snow, ice and slush in the streets of cities like Dunkirk. Sometimes it is frozen, at other times soft. The municipality cannot be expected to keep its streets free from this condition. The construction of the streets, gutters and crosswalks had existed for many years, and the space between the ends of the crosswalks and the sidewalk is liable to have soft material in it. There is no more difficulty in stepping over this space across the gutter when filled with soft material than when it is empty. It was not expected to be kept frozen or hard and packed down, so as to bear up the weight of the pedestrian going over the crosswalk. The gutter was constructed so as to permit the matter therein to be carried away by surface water, and was not expected or required to be kept packed down and solid. The case was tried and submitted to the jury peculiarly. The law was only stated so as to exclude negligence in the form of the construction of the street, gutter and crosswalk, when requests were made at the close of the main charge. The notice of the claim stated the alleged negligence to be the constructing and maintenance of a public nuisance in the shape of an unprotected gutter or drain, the improper and unsafe manner of constructing the drain and crosswalk, and failure to carry out and fully complete its plans in the construction of the drain, crosswalk and ¡lavement, and to keep and maintain the crosswalk in a proper state of repair and in a reasonably safe condition for passers-by. The court permitted the plaintiff to put in evidence, under objection, a resolution passed by the common council some days before the accident, “ that the matter of eliminating gutterways along the paved streets in this city, which a/re very dangerous to pedestrians and vehicles on account of the opening left between the sidewallcs and curbs a/nd the pavements sufficiently wide to cause accidents, by having the same cut down to the level of the pavement and connecting the same to the curb, be referred to the street commissioner, city engineer and committee on streets, to report at the next meeting the estimated number of said gutterways still in existence on the old streets and the approximate cost of doing this work.” And then the court in its main charge left the question to the jury whether the city was guilty of negligence in permitting the crosswalk to remain in a dangerous condition. The court in its main charge nowhere suggested that negligence could not be predicated upon the form of the construction of the crosswalk and gutter, and it was only when defendant’s counsel by its requests required the court to pass directly upon this question, that the instruction was finally procured that negligence could not be predicated upon the manner of the construction of the crosswalk and gutter, and even then the court interposed the word solely. So that the jury were not quite fully charged that negligence could not be based upon such construction. Very likely the law was at last charged technically correct, but the jury did not have a full statement from the outset that the city had a legal right to maintain the construction as it was, and could only be held liable for negligence by reason of allowing the snow, ice, etc., to accumulate therein and to become thawed up and soft so it would not bear up a person passing over it. How could it be competent to show the common council regarded such construction as dangerous, when this could not be the basis for alleged negligence in the action ? I do not think the notice was sufficient to permit a recovery upon the basis on which the verdict was rendered. I do not think the resolution of the common council was competent or proper, and it must have resulted in injury to the defendant on the trial. I do not think the verdict can be supported under the charge of the court, finally delivered, limiting actionable negligence to the accumulation of snow, ice, etc., in the gutter.

There are some other questions raised by counsel, but I do not think it necessary to discuss them here. There should be a new trial.

All concurred.

Judgment and order reversed and new trial ordered, with costs to appellant to abide event.  