
    George L. Holloway, Resp’t, v. The City of Lockport, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 19, 1889.)
    
    1. Municipal cobpoeations — Negligence.
    Where city officers having charge of the streets and sidewalks, with knowledge thereof,permit a loose, warped and unfastened plank to remain in the sidewalk for a long period of time, this will constitute negligence on the part of the corporation, rendering it liable for damages caused thereby.
    3. Negligence — Knowledge op defect not conlusive as to contbibdTOBY NEGLIGENCE.
    The fact that the plaintifE knew of the defect in the walk before the accident will not alone deprive him of a right of action, but is one of the facts to be considered by the jury in determining whether he was guilty of contributory negligence.
    3. Same — Chabge.
    The court refused to charge that if plaintifE, being familiar with the place, used no more care and precaution in passing than if he was wholly ignorant of its condition he could not recover, but charged that it was his duty to be careful and prudent in view of the knowledge which he had. Held, no error.
    Appeal from a judgment entered upon the verdict of a jury rendered at the ¡Niagara circuit in the plaintiff’s favor, for the sum of $375, and from an order denying the defendant’s motion for a new trial, founded on a case containing exceptions. The action is to recover damages for personal injuries received by the plaintiff, alleged to be caused by the defendant’s negligence to keep a sidewalk within the city limits in a safe and secure condition. At the close of the plaintiff’s evidence the defendant moved for a non-suit, which was denied, and the defendant took an exception.
    
      John E. Pound, for app’lt; S. E. Graves, for resp't.
   Barker, P. J.

The exception to the refusal to grant a nonsuit presents the only question which merits much consideration. The plaintiff is a resident of the city of Lockport, and at the time of the accident he resided on Van Burén street, on one side of which there was a plank sidewalk, four feet wide, the plank being laid crosswise upon stringers. He passed over this section of the walk daily in going to and from his place of business, his occupation being that of a machine blacksmith. On the day mentioned, while walking along the sidewalk, he stepped on one of the planks, which caused it to tip and catch the plaintiff’s other foot, and he was thrown down on his hands and face, and received an injury to one of his knees, which disabled him for forty days, from which he had substantially recovered at the time of the trial. The plank was warped, loose and unnailed, so that when stepped upon the edge of the plank would turn up above the general level or surface of the sidewalk.

As the plaintiff fell the plank was entirely removed from its place, and when the plaintiff was down it was between his legs. The evidence tended to prove that this place had been in this condition for a considerable length of time previous to the accident, and from the proofs the jury were justified in finding that the officers of the city, having charge of the streets and sidewalks, knew the real condition of the walk at this place.

One of the deputy street commissioners passed over this part of the walk daily for months immediately preceding the accident, and other persons who passed over the walk observed that the plank was not nailed, and was loose, and moved when' stepped upon.

It is a matter of common observation to all persons who are accustomed to walk upon plank sidewalks, that a loose, warped and unfastened plank, laid crosswise, and on stringers, constitutes a dangerous trap in the sidewalk. So, if it be true, as the plaintiff’s evidence tended to establish, and which was not much disputed by the defendant’s witnesses, enough was shown as to the condition of the walk to justify the finding" that the defendant was guilty of negligence in permitting this walk to remain in an insecure and unsafe condition.

The duty of the defendant was to keep the streets and sidewalks constructed under its orders and directions, within the city limits, in a reasonably safe and secure condition. If the plaintiff did in fact know of the real condition of the walk before the accident happened, that circumstance alone does not deprive him of a right of action — that circumstance, however, with all the other facts bearing on the question, were to be considered and weighed by the jury, in determining whether the plaintiff was guilty of contributory negligence. We think that the jury properly disposed of that question, at least the case as presented by all the evidence is such as not to permit us to disturb their finding on the question.

This question was asked one of the plaintiff’s medical witnesses who attended him during the period of his lameness : “ What do you say as to this injury to his knee being a permanent one?" The defendant’s counsel objected to the question as being incompetent and immaterial, and the objection was overruled, and the defendant’s counsel excepted. But this question was not answered, and the court propounded to the witness the following question: “ Have you any opinion on the subject whether he will entirely recover from it? ” Ho objection was made to this question, and the witness answered, “I hardly think he will entirely.” We think' the first question entirely proper, but as it was not answered, it does not need further consideration.

The defendant’s counsel asked the court to charge, that if the jury find, “ that the plaintiff, being familiar with the place where the accident took place, used no more care and precaution in passing than if he were wholly ignorant of its condition, then he cannot recover.” The court declined so to charge, but stated, in response to the request, “ that if the plaintiff was familiar with it, and it was out of order, there is stronger probability that he must have known that there were loose planks there, ana it became his duty to be careful and prudent, in view of the knowledge which he had.” To which charge the defendant duly excepted.

By a strict construction the exception is limited to the charge as made, and is not an exception to the refusal to charge as requested. It needs no argument to show that the charge requested did not, in any manner, define the degree of care and caution which it was necessary for the plaintiff to exercise, if he knew, as a matter of fact, that the walk was out of repair, to escape the imputation of negligence on his part, and the court properly refused to assent to the proposition The instruction which was given to the jury on the subject, so far as it went, stated the rule of law correctly relative to the subject. The court, after the exception was taken, gave to the jury the further instruction that if the jury find that the plaintiff was familiar with the walk in question, and its condition, and passed over it daily, it was his duty to use more than ordinary care in passing over it on the day that he received the injury complained of, and that it was his duty to be more vigilant if he knew of the defect than if he had been ignorant of the fact that it was out of order. The appellant has no right to criticise these instructions to the jury, ana it appears that he was satisfied with the same, as they were made at his request.

The appellant also asked the court to charge the jury that if the plaintiff was aware that the walk was out of repair ana dangerous to pass over at the point where he met with the accident, he should have turned out and gone around the dangerous place, which was declined, and the defendant excepted. On the argument the appellant did not claim that this exception was well taken, and manifestly it was not.

Judgment affirmed.

Dwight and Macomber, JJ., concur.  