
    Emil Carlson, Appellant, v. The City of Dunkirk, Respondent.
    Fourth Department,
    May 4, 1910.
    Municipal corporation—negligence—sidewalk — duty of inspection — constructive notice — question for jury.
    A municipal corporation must use active vigilance to ascertain- the condition of its walks, and when a defect has existed so long that, in the proper exercise of such vigilance, it should have been discovered, the corporation is charged with constructive notice* of the defect. .
    If there be any evidence of constructive notice, .there is a question for the jury and a nonsuit is error.
    Where in an.action against a city to recover-for personal injuries caused by a defective board walk the plaintiff gives evidence that the plank which caused the injury was cross-grained and broken and that it had laid in the walk for some lime until it was rotten, it is error for the court to nonsuit at the close of plaintiff’s case on the ground that there is no evidence of constructive notice to the city.
    Appeal by the plaintiff,-Emil Carlson, from a'judgment of the Supreme Court in favor of the defendant, entered in .the office of the clerk óf the county of Chautauqua on the 19th day-of February, 1909, upon a nonsuit granted by the court at the close of plaintiff’s case on a trial at the Chautauqua Trial Term,
    
      
      Thomas H. larhins, for the appellant.
    
      Nelson J. Palmer, for the respondent.
   Williams, J.:

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

The action is for negligence. Two persons in the day time were walking along a sidewalk ; one stepped upon a plank, it flew up, and the other person, the plaintiff, caught his foot thereon and was thrown down and injured.

The only question involved in this appeal is whether there is in the record sufficient evidence to'make the alleged negligence of the defendant a question of fact for the jury. The walk was shown-to be defective. The defendant was not proven to have had actual notice of its condition, but plaintiff claims it had constructive notice. The court held there was no evidence of constructive notice, and granted the nonsuit on this ground alone, stopping the plaintiff from the giving of evidence on other questions. The evidence relied upon by plaintiff was as follows: Plaintiff testified: “I was walking, my partner walked inside of me, and he stepped on the plank, and that short piece went up, and I got my foot down in the hole and I went down. I examined the piece that was loose that caused this accident. Its condition was rotten.- I did notice the parts of the loose piece where they came in contact with the others. Where they came in contact with the other piece, I did notice their condition. * * * ' This piece was that long (indicating), where it went out of the walk, where that man stepped on, and I got my foot down in there, and I got tangled - there and fell on my shoulder. Mr. Hill stepped on it. * * * Afterwards I removed this piece of lumber from .the sidewalk. I did examine it. I looked at it and it was rotten. * * * That fracture was about eighteen inches long * * * about' eight inches wide.”'

Hill testified : 1 was with him [plaintiff] * * * I remember the accident; * * * I was walking on the outside of the walk, and he about in the center, and when I stepped on the plank it tipped up and tripped him up, and he fell down. * * * When I said that I stepped on the outside of the plank, I meant the piece of the planlc, the piece that was broken off from the planlc that was in the sidewalk. It looked there as if it was" all whole. * ;* * I supposed it was all right. I stepped on it, it tipped up and the plaintiff went in. I noticed the piece that sprung up, that he stumbled over. It had been therefor some time. It was weather-beaten. * * * The piece was kind of cross-grained; it had been split in two. * * * It was somewhere about two. feet long, eight inches wide and two inches thick. * * * It was cross-grained and had been split, and they [the pieces] lay right together.”

This witness was asked whether this was an old or a fresh break, liow-long it had been broken, etc.., but the court on objection by defendant refused to allow him to answer.

Martin testified that plaintiff asked witness to go with him, and that “We went down and seen the place where he said he fell down. Yes, I seen the place where he fell down. Mr. Carlson took the piece up there. He took the piece up that was loose in the sidewalk and took it with him home. I saw it. It was a rotten piece out of the sidewalk, that is all, a plank what was loose there, you know. * * * It was split crosswise. The piece of planlc where he took this out. The other one xvas rotten too, pretty near. This piece out of the plank xvas * * * eighteen inches, something like that and about eight ‘inches xvide. .One end was smaller than the other end. In other words it ran to a point and the point was in the center of the'walk. The broad end, the eight inch piece, xvas the piece that rested on the sill. The point was on the inside of the sidewalk. The point was in the middle of the sidewalk.”

The court did not permit any cross examination of these witnesses.

The rules of laxvrelating to constructive notice of the defective condition of sidewalks are well understood. The municipality had' the duty of active vigilance to ascertain .the condition of its walks, and when a defective condition has existed for such a length of time that in the proper, reasonable exercise of such vigilance the defect xvould be discovered, then constructive notice exists. And within the rule laid down in McDonald v. Met. St. R. Co. (167 N. Y. 66), if there is any evidence of such notice to submit to a jury, the court cannot nonsuit although it may set aside the verdict after it is rendered, if it is contrary to or against the Weight of the evidence. In this case the evidence warrants the finding that the walk was defective, that it had a cross-grained, broken plank, and. it had laid in the walk for some time, and until it was rotten. It seems to me that there was at least some evidence that the defective condition liad'existed for a length of time authorizing the finding of constructive notice thereof to the defendant.

I do not think the court was justified in granting a nonsuit upon this ground. It is within the knowledge of all of us that too many defective sidewalks with rotten and broken planks are allowed to remain in municipalities, to endanger the limbs, of persons walking over them. The municipalities should be held to strict accountability for accidents occurring by reason thereof.

All concurred.

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