
    Martin Touhey, Appellant, v. The City of Rochester, Respondent.
    
      Hegligence—injury from, a defective city sidewalk — what is not “ actual notice” to the city officers—what notice is insufficient1
    Notice of a defect in a sidewalk in the city of Rochester given to a sidewalk inspector of that city, who had no authority to repair sidewalks and whose duty it was to examine the sidewalks and to notify the abutting owner to .remedy any defects discovered by him, and if such defects were not remedied within five days to notify the foreman of repairs, to the end that the latter might make the necessary repairs and charge the expense upon the abutting property, is not “ actual, notice * * * to the city officers having charge of the highways.”
    Notice of the defect given to the superintendent of repairs, four days before a pedestrian sustained personal injuries in consequence of the defect, is not sufficient to charge the city with liability, as, under the charter, .the city authorities had no power to make the repairs until they had given five days’ notice to the abutting owner to make the repairs.
    Appeal by the plaintiff, Martin Touhey, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Monroe on the 27th day of December, 1899, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 27th day of .December, 1899, denying the plaintiff’s motion for a new trial made upon the minutes.
    The action was commenced on tlié 21st day of Hovernber, 1893, to recover damages sustained by the plaintiff . alleged to have been caused through the negligence of the defendant.
    
      Eugene Van, Voorhis, for the appellant.
    
      Porter M. French, Corporation Counsel, for the respondent.
   McLennan, J.:

The plaintiff claims that on the night of the 25th day of August,. 1893, while walking upon the northerly sidewalk on University avenue, one of the public streets of the defendant, in front of property owned by the Hew York Central and Hudson River Railroad Company, at a point about "100 feet east of its car shops, a board' in the sidewalk gave way and he was precipitated into a hole beneath, was thrown down and received serious and permanent injuries, and without any fault or negligence on "his part; that'the sidewalk was in a defective, unsafe and dangerous condition at the time in question and had heen for a long time prior to the accident to the knowledge of the defendant, and that actual notice of such unsafe or dangerous condition had been given to the officers of the defendant at such time prior to the accident that in the reasonable discharge of their duty they should have repaired and remedied the same.

Upon the trial of the action substantially three issues or questions of fact were submitted to the jury:

First. Was the defendant negligent in permitting the sidewalk to remain and be in the condition in which it was ?
Second. Was the plain tiff guilty of contributory negligence ? and
Third. Had actual notice of the unsafe or dangerous condition of the walk been given to the officers having charge of the street of the city a reasonable time before the happening of such injury, as required by the charter of the defendant, being section 218 of chapter 14 of the Laws of 1880, as amended by chapter 561 of the Laws of 1890 ?

The jury were instructed in substance that, if all or any one of such questions were answered favorably to the defendant, the plaintiff could not recover.

The only controversy arises over the manner in which the third proposition was submitted by the learned trial court, and we may assume, for the purposes of this appeal, that the evidence upon the two other propositions was such as to entitle the plaintiff to recover, provided the jury had answered the third proposition favorably to him. It is, therefore, only necessary upon this appeal to determine whether or not reversible error was committed by the learned trial court in the submission of the question, had the officers of the defendant actual notice of the condition of the sidewalk in question for a reasonable time prior to the accident?

The section of the charter provides: The city of Rochester shall not be liable for any injury caused by such sidewalk or any roadway being out of repair, or unlawfully obstructed or dangerous from snow or ice, unless actual notice of the unsafe or dangerous condition thereof lias been given to the city officers having charge of the highways, a reasonable time before the happening of any such injury.”

The charter also provides: “ The executive board, superintendent of streets or other officer or body having 'charge of the highways within said city, shall have the power to repair any sidewalk where the owner of the property shall neglect or refuse to repair the same for five days after a written notice so to do has been served upon him.”

It appeared that the street department of the city of Rochester was under the control of an executive board, composed of three members and. a superintendent of streets appointed by them. The inspection of sidewalks was left to a large number of 'sidewalk-inspectors, also appointed by the executive board, who were charged with the duty of inspecting the sidewalks of' the city, and when defects were discovered to serve notice upon the abutting property owners, requiring them to remedy the defects within five days. In case the property owner did not make such repairs within that time, it was the duty of the inspector to report the fact to a foreman of repairs or chief inspector, who was in charge of .the repair gang, and who had authority to make' such repairs, and the cost thereof ■ then became a charge and lien upon the abutting property.

The evidence tended to show that at the time of the accident in question and for a year or more prior thereto, one Moore was superintendent of repairs, and a Mr. Sontag was inspector of sidewalks; that on the 1st day of August, 1893, .Sontag served a notice upon thb New Fork Central and Hudson River Railroad Company, stating in substance that the sidewalk in question was out of repair, and calling upon the company to repair the same. The notice was in writingwas upon a form furnished to sidewalk inspectors by the executive board, and wasMgned by Sontag as inspector. Mr. Sontag, who was called as a witness on behalf of the plaintiff, testified that after five days had elapsed from the date of the service of the notice by him he again examined the sidewalk and found that it had not been repaired, and that thereupon he reported the matter to Moore, the foreman and who had authority to repair the sidewalk in question. The walk was not repaired, and upon the twenty-first day of August Sontag served a second notice upon the railroad company, by the direction of Moore. At t'he time of the trial Moore .was dead, and it appeared that soon after the accident occurred Sontag made an affidavit, in which lie stated that he had never called the attention of Moore or of any other officer of the city of Rochester to the fact that the sidewalk in question was out of repair.

The learned trial court, therefore, submitted the question of fact to the jury, whether or not Sontag had notified Moore, the superintendent of repairs, of the defective condition of the sidewalk, as testified to by him, and charged the jury that if they believed Sontag’s testimony in that regard, the requirements of the statute requiring actual notice to be given to “ the city officers having charge of the highways, a reasonable time before the happening of any such injury,” had been complied with, and charged in substance that if such information had not been given by Sontag to Moore the plaintiff was not entitled to recover. And. the court further charged that even if Moore had notice of the defective condition of the sidewalk on the twenty-first day of August, only four days before the accident, that was not such reasonable time as would charge the defendant with negligence, in case the walk was not repaired between that-day and the time of the accident.

It is clear that the jury by its verdict found that Sontag, the sidewalk inspector, did not inform Moore of the condition of the walk at the expiration of the five days after serving the-first notice upon the railroad company, as testified to by him, and we think the learned trial court properly held that even if Moore had knowledge of the defective condition of the "walk only four days before the accident, the defendant was not chargeable with negligence for failure to repair the sidewalk within that time, because under the provisions of its charter, the city had no authority to make such repairs until five days after notice had been served upon the railroad company and it had failed to make such repairs, and it would be unreasonable to charge the defendant with negligence on account of omitting to do an act which it had no authority to do, under the provisions of its charter.

The learned counsel for the appellant contends that the knowledge of the defective, condition of the sidewalk by Sontag, the sidewalk inspector, and which induced him to serve the first notice of such defects upon the railroad company, was sufficient to charge the defendant, even if he did not notify Moore, as testified to by him; that Sontag was in fact the agent of the executive board; was authorized to act for it and give notice to property owners of- defects in sidewalks, in the name of the board or of the street superintendent, and that his knowledge of such defects was the knowledge of the executive board, and was sufficient in that regard to establish liability on the part of the defendant. '

■ We think the proposition is untenable and that the evidence so far referred to was insufficient to prove actual notice to the officers of the city having charge of the highways, unless the jury believed the testimony of Sontag, in which he stated that he had notified Moore of the condition of the walk in question, five days after the first day of August, the date when the first notice was served upon the railroad company. Sontag had no authority to repair the sidewalk in question, or any of the other sidewalks in the city. His only duty, as we have seen, was to -examine the sidewalks, discover defects if they existed, serve notice upon the property owners of such defects, and if such defects were not remedied within five days to notify the superintendent, to the -end that he might make the needed repairs, which he was authorized to do, and thus make them' a charge upon the abutting property.

We'think this proposition must be regarded as settled by the decision in the case of Smith v. City of Rochester (46 N. Y. St. Repr. 727). In that case the plaintiff offered to show by a witness that he was one of the sidewalk inspectors of the city at the time of the accident, and that in the performance of his duty as such inspector he passed by the place in question and saw its condition on the day of the accident; that he was appointed such inspector by the executive, board, and that his duty was, among other things, to examine the sidewalks and ascertain for the executive board whether or not the same were out of repair or in a e dangerous condition. It was held that such knowledge on the part of the inspector was not chargeable to the executive board under the. provisions of the statute. The court said: But the knowledge of the inspector cannot be imputed to the members of the executive board, under any rule of law with which we are acquainted. The members of the executive board are themselves but mere agents of the municipality, and the statute has seen fit absolutely to say that the municipal corporation shall not be liable for injuries of this character unless actual notice-has been brought home to the executive board.- This, of course, does not mean that a formal notice shall be served upon each or any member of the board. It is sufficient that they have knowledge of the existence of the defects a reasonable time before the injuries complained of were received to enable an action to be maintained, but the knowledge of any other person whom they may employ is not imputable to the board until it is in some way brought to their attention.”

In the case of Sprague v. City of Rochester (159 N. Y. 26) it was held that a liberal construction of the statute was proper, and that “ city officers ” should be held to include “ any person ‘ having charge of the highways,’ by virtue of power of superintendence dele gated to him by the executive board.”

It was further said at page 28: “We think that notice of defects in sidewalks given to a foreman of sidewalks clothed with general-power to repair throughout a large district of the city, is notice tó a city officer having charge of highways within the meaning of the charter. This construction gives the city protection against imputed negligence without relieving it -from liability for actual negligence, and thus fulfills the purpose of the statute.”

In the case at bar, as we have seen, no such conditions existed. Sontag, the sidewalk inspector, so called, was not authorized to repair; had no power so to do. He was simply employed to discover defects, give notice to the property owners if defects were found, and in case they failed to comply with the requirements of the notice to report such fact to the superintendent or chief inspector, to the end that he might remedy the defect.

Any other interpretation of the statute would clearly nullify the intent and purpose of the Legislature. If it should be held that actual notice of a defective sidewalk to any one of the numerous sidewalk inspectors employed by the city, none of whom had authority to make repairs, or do any act' in that regard, is equivalent to giving ' such notice to officers having charge of the highways', the words of the statute would be meaningless, and would not afford the city the protection clearly intended.

It is urged, however, on the part of the appellant, that there was testimony which tended to show 'that in the fall of 1892 one Durand notified Aldridge, who was a member of the executive board, of the defective condition of the sidewalk m question, and that such defective condition had continued until the time of the accident, and the court was asked by appellant’s counsel to charge: “ That the jury may consider as to whether Durand gave notice to Aldridge, a member of the Executive Board, as to the condition of the sidewalk in 1892, and as to whether the sidewalk was repaired after that time and before the accident to the plaintiff.”

The request was declined, and the appellant’s counsel duly excepted.

Wé think the request was not proper, and was properly declined, for several reasons.: First. It appears by the evidence of Durand, who testified that he gave the information to Aldridge, that about three months after he had such talk he noticed that the sidewalk which he referred to had been repaired. He noticed that new planks had been put in where they had been broken. “ They had some one there repairing the walk about three months after I reported to Aldridge.” He further stated that after these repairs had been made he did not notice any loose boards.

From reading the evidence of Durand it is impossible to conclude that the defects in the sidewalk which he reported in the fall of 1892, existed at the time of the accident,, or for. any considerable length of time after he informed Aldridge of the defective condition of the walk. It is true the walk was not relaid or put in perfect condition, but it cannot be said that the defects which were reported to. Aldridge by Durand were not remedied before the accident occurred.

Again, it appears that the accident did not occur upon that part of the walk reported by Durand to Aldridge as being out of repair. The evidence of Durand, and it is the only evidence upon the question, is to the effect that he reported to Aldridge that the sidewalk was out of repair in front of the car shops of the Hew York Central Railroad Company ; that the walk was in bad repair there.

The. evidence in the case clearly shows that the accident occurred at léast 100 feet from the easterly end of the car shops, although in front of the property owned by the railroad company. So that, if it be assumed that Durand notified Aldridge of the condition of the walk m front of the car shops, it cannot be said that he had actual notice of the condition of the walk 100 feet distant, or at the place where the accident in question occurred.

We conclude that the testimony of Durand in regard to his conversation with Aldridge raises no issue of fact upon which a verdiet against the defendant conld he based, and that such evidence was not material or proper to be considered by the jury, and, therefore, that no error was committed by the learned trial court in refusing to charge as requested.

No other ruling has been called to our attention which presents reversible error or requires discussion. All the issues raised by the evidence were fairly presented to the jury by the learned trial court, and their verdict upon those issues, which was adverse to the plaintiff, we think should be regarded as conclusive.

It follows that the judgment and order appealed from should be affirmed, with costs.

All concurred.

Judgment and order affirmed, with costs.  