
    Bridget Corbett, Resp’t, v. The City of Troy, App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed July 6, 1889.)
    
    1. Jury—When objection to waived.
    Where a party proceeds to trial with ten jurors hy consent, it constitutes a waiver of any objection to the exclusion of a juror by the court on its own motion.
    2. Evidence—Action eor personal injuries—Condition op health.
    In an action for personal injuries, testimony by the plaintiff as to the condition of her health is competent; also a statement made by plaintiff’s sister that she looked sick.
    3. Same—Admissibility.
    • Where it is stipulated that a city charter may be read by either party, an objection to reading part of it is not tenable.
    4. Municipal corporations (charter city Troy)—Laws 1870, chap. 598, title 6, § 4—Laws 1872, chap. 129, title 6, § 3—Public Street-Question oe PACT.
    The charter of Troy (Laws 1870, chap. 598, title 6, § 4; Laws 1872, chap, 129, title 6, § 3) provides, “all streets and avenues in said city which are now opened or shall hereafter be opened to proper use, and shall he used as such for five years continuously, shall be deemed and taken as public streets and avenues.” Held, that the court was justified in submitting to the jury the question, whether the place in question was in a public street.
    5. Negligence—Icy sidewalk—Liability.
    In an action for personal injuries resulting from a fall on an icy sidewalk, made slippery by water" escaping from a hydrant, it appeared that the hydrant had been leaking throughout the winter, and that the temperature for a day or so before the accident was such as to form ice. HeM, that the city was guilty of negligence.
    
      R. A. Parmenter, for app’lt; James Lansiny, for resp’t.
   Learned, P. J.

It appeares by the case that it contains substantially the whole of the evidence. Porter v. Smith, 107 N. Y., 531; 12 N. Y. State Rep., 479.

One person was excused by the court on its own motion from sitting as a juror, he having stated that his opinion was that all these suits against the city for slipping on icy sidewalks, should be stopped once and forever. The defendant excepted. The court proceeded by consent with ten jurors. If the court proceeded with ten jurors by consent,, this must have been a waiver by defendant of his objection to the exclusion of the juror above mentioned. He may have been the eleventh. And certainly a jurror who had expressed that opinion in court was not indifferent between the parties.

The question to plaintiff as to the condition of her health, is competent. One can know that he is in poor health without being a doctor.

The statement by plaintiff’s sister that “ she looked to be sick,” was not improper. Several similar answers seem to have been excluded or stricken out.

In the case after the plaintiff had offered in evidence the charter of Troy relating to the water department, it is said: “Charter may be read by either party.” Subsequently comes an objection by defendant to proving any of the statutes referring to the water works. We see nothing objectibnable in reading any part of the charter, especially afterthe consent above quoted.

The charter of Troy provides: “All streets and avenues in said city, which are now opened, or shall hereafter be opened to proper use, and shall be used as such for five years continuously, shall be deemed and taken to be public streets and avenues.” Chapter 598, Laws 1870, title 6, section 4; chapter 129, Laws 1872, title 6, section 3.

Under the decisions in Strong v. Brooklyn (68 N. Y., 1), Requa v. Rochester (45 N. Y., 129), Morse v. Troy (38 Hun, 301), we think the court was justified in submitting to the jury, in the manner he did, the question whether the place in question was in a public street. The evidence of an engineer that he had laid out the streets and the evidence of use seems to bring the case within those decisions. The defendant urges that these words in that section of the charter “ opened or to be opened,” apply only to some official action on the part of the city. We think that the decisions above-cited show that such is not the true construction. It is suggested by the defendant that it is not right that a private citizen should thus compel the city to accept streets. But that is a consideration for the legislature.

The remaining question is that of negligence of the city in not removing the ice. The testimony is not very satisfactory. The accident happened Monday morning, February twenty-second, on the north side of Tyler street. Tyler street, as laid out by the city, ran from Hudson street west to the river. From Hudson street it had been continued eastward by the owner of the property on a map made for him some twenty-five years before the accident. Some houses had been built upon it and on other connecting streets on the same map. One Gleason, whose house was on the south side of the street about opposite the place where plaintiff fell, had a hydrant of his own on his lot by his house. It is claimed by plaintiff that the water therefrom ran across the street and froze on the south sidewalk (so called), and formed a layer of ice.

Some two inches of snow had fallen Sunday night and was on the ice. The plaintiff did not see the ice because it was covered with snow; and thus fell. The plaintiff’s family used to get water at this hydrant. The testimony is that the water burst out across the road and worked its way and struck the sidewalk. There is testimony also showing that this ice had existed for several weeks. The north side of the road was lower than the south and the street descended steeply towards the west.

In opposition to this the defendant proves by the record of one who had observed the weather and temperature, that on the thirteenth, there was a heavy rain; that from that day to the sixteenth, the thermometer was considerably above freezing; that the sixteenth and seventeenth was freezing weather, but not below nineteen degrees; the eighteenth and nineteenth were generally above freezing, and there was steady rain on the nineteenth; during the twentieth it grew cold, and snowed on the twenty-first.

Now, in order to make the city liable, there must be constructive notice. It seems impossible with the heavy rain on the 13th, producing even a freshet, and with the changeable weather afterwards and a steady rain on the 19th, that the ice on which plaintiff fell could have been on the sidewalk prior to the 20th.

But, on the other hand, the hydrant is shown to have been leaking -during the winter. And therefore, although this ice may have existed but a few days, yet the jury might have been justified in finding negligence in the city in permitting an escape of water upon the sidewalk which would inevitably cause ice as soon as the weather became cold. This is not a case where the ice came from what one called natural causes, such as the freezing of rain or sleet. Here an escape of water was permitted through the winter. It might be harmless during warm winter weather, but it would certainly cause a dangerous place when the temperature should be below thirty-two degrees. There was constructive notice of the escape of this water, and of its flowing on the sidewalk. And knowing that a cold night might make this a cause of peril, the city might justly be found guilty of negligence by the jury.

For these reasons, we think the judgment and order should be affirmed, with costs.

Land on and Ingalls, JJ., concur.  