
    Simon Bly, Resp’t, v. The Village of Whitehall, App’lt.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed June 3, 1890.)
    
    1. Municipal corporations—Negligence—Water overflowing . sidewalk.
    The side and cross-walks at the junction of two of defendant’s streets w'ere covered with water, caused by the clogging up of the sewer by ice and snow, and plaintiff at 10 p. m., while attempting to cross the walk in the dark, walked off the edge of the sidewalk and was injured. One of defendant’s street commissioners testified that on the day of the accident he found the gutter full of ice and snow and overflowing the sidewalk; that he cleared out the gu'ter, hut did not clear away the obstruction which prevented the water from running into the sewer. Held, that there was sufficient evidence to justify the referee in finding defendant negligent.
    2. Same—Contributory negligence.
    Plaintiff was not guilty of contributory negligence in attempting to cross the street, two persons having crossed in safety before him,
    Appeal from a judgment of the general term of the third judicial department, affirming a judgment entered on a report of a referee.
    
      J. ,S. Potter, for app’lt; Otis A. Dennis, for resp’t.
    
      
       Affirming 14 N. Y. State Rep., 294.
    
   Per Curiam.

About ten o’clock in the evening of March 14, 1885, the plaintiff, while walking from William street to Sanders street, stepped into a gutter and was severely injured. On this occasion the side and cross-walks at the junction of these streets were covered with water so that the plaintiff could not in the dark determine the location of the walk or of the gutter, and while making his way along the street he walked off the edge of the sidewalk and into a gutter some twelve or fourteen inches deep. It is not disputed that this condition of the street was the cause of the accident. The contention on the trial was limited to two issues: (1). Was the defendant negligent in leaving the street in this condition? (2). Did the plaintiff negligently contribute to his own injury? Considerable evidence bearing upon the first question was given; but for the purpose of determining whether there was any evidence tending to sustain the finding of the referee that the defendant was negligent, we think it only necessary to refer to the evidence of John Townsend, defendant’s street commissioner, who was sworn in its behalf. He testified that on the day of the accident he found the gutter full of ice and snow and the water running over the walk. That he cleaned out the gutter but did not clear away the obstruction which prevented the water from running into the sewer, and that he left the street in that condition at about half-past five o’clock in the afternoon. It was conceded on the trial that the place was not guarded, nor were lights placed to expose the situation. We think that it cannot be said that there is no evidence in the record tending to show that the defendant was negligent.

It is urged that when the plaintiff reached this comer he should not have attempted to cross the street. The evidence does not disclose a situation so palpably unsafe that this court can affirm, as a matter of law, that the plaintiff was negligent The witnesses who were present at the accident testified that the plaintiff proceeded with caution. Two persons who were with him crossed in safety, but the plaintiff, who was carrying a child, happened to overstep the walk, which was covered with water, and fell into the gutter. The finding of the referee that the plaintiff was not negligent is not without evidence tending to sustain it. These two questions being well found, it was quite unnecessary for the referee to pass on the requests preferred by the defendant, which called, not for the determination of issues of fact, but of evidentiary facts ; which, had they been found, would not have changed the result.

None of the rulings admitting, or excluding evidence, are challenged by the defendant.

The judgment should be affirmed, with costs.

.All concur, except Potter and Parker, JJ., not sitting.  