
    Emily Tompkins, Adm’rx, Resp’t, v. The City of Oswego, App'lt.
    
      Supreme Court, General Term, Fourth Department,
    
    
      Filed July 7, 1891.)
    
    1. Municipal corporations—Negligence—Defective streets.
    Plaintiffs intestate, a man sixy-three years of age, was killed by falling over a defective railing into the canal, where he was drowned. It appeared that the street ran along the canal and twenty feet therefrom; that the street inclined toward the fence, and on the other side of it the ground descended precipitously to the canal. All that remained of the fence was the lower rail about twelve inches from the ground. The ground was wet and slippery on the evening of the accident. Held, that the evidence was sufficient to justify the submission of the question of defendant’s negligence to the jury.
    2. Same-Contributory negligence—Intoxication.
    The mere fact that the deceased was intoxicated at the time of the accident is not alone sufficient to establish contributory negligence, but is at most a circumstance for the consideration of the jury, and a charge that it is for them to determine whether the intoxication contributed to the injury is proper.
    3. Same—Notice.
    The requirement as to notice contained in § 15 of chap. 127, Laws 1877, relates only to sidewalks and crosswalks, and not to other defects in the street.
    Appeal from a judgment entered in Oswego county October 9, 1890, on the verdict of a jury, and from an order denying the defendant’s motion for a new trial made on the minutes of the trial judge.
    The action was to recover damages for the alleged negligence of the defendant in not properly maintaining a fence or guard railing along the side of West First street, in the city of Oswego. The plaintiff claims that by reason of the defendant’s omission to maintain such fence or railing, the plaintiff’s intestate met with the accident which caused his death. At the point where the accident occurred, a canal, known as the Yarick canal, runs parallel with West First street, on the east side thereof, and is about twenty or thirty feet from the fence or railing on the east side of the street. Just east of the fence the ground declines precipitously some twenty-five or thirty feet to the canal.1 Over this precipice' the plaintiff’s intestate fell, and was drowned. A fence or guard railing had been erected along the side of the street, but was out of repair at the point where the accident occurred, the upper and middle rails being gone, leaving only the bottom rail, over which the decedent fell. This rail was about twelve inches above the ground. The evidence tended to show that this fence was erected by the defendant. The surface of the ground in the street was uneven and descended towards the fence. There was nothing at the point where the accident happened to protect a person from falling into the canal except the lower rail. The precipice was an abrupt one. The street near the fence had for years been used by the public, both by travelers on foot and by teams. On the evening of the accident the ground was wet and slippery, and there had been a slight fall of snow. The decedent was a man about sixty-three years of age, was able to work and support his family, earning about $500 a year.
    On the trial when the plaintiff rested, the defendant moved for a nonsuit on the grounds: “ 1. That contributory negligence on the part of the deceased had been shown by the plaintiff’s evidence; and, 2. That no notice of the defect complained of had been given to the defendant as required by its charter.” At the close of the whole' evidence the motion was renewed upon the same grounds and the additional grounds: First. That no liability as against the city had been established; and, second, that contributory negligence on the part of the plaintiff’s intestate had been shown. Both motions were denied, and the defendant excepted. On the rendition of the verdict the defendant moved to set it aside and for a new trial on the minutes, which motion was denied.
    
      Thomas H. King, for app’lt; Lester & Smith, for resp’t.
   Martin, J.

A municipal corporation is bound to exercise ordinary care and diligence to see that its streets are kept and maintained in a condition rendering them reasonably safe for travelers to pass over them. This duty extends to the entire width of the street, including the sidewalks, and to persons on foot as well as teams. Whether the defendant was guilty of an omission to perform this duty is one of the questions in this case. The court submitted to the jury the question whether the defendant was negligent in omitting to repair and properly maintain the railing which was erected along the side of the street where the accident occurred, so as to protect travelers from the danger of falling off the embankment along which the street ran. This railing had been out of repair some months, and the question whether the defendant had constructive notice of that fact was left to the jury. We think the evidence was sufficient to justify the court in submitting the question of the defendant’s negligence to the jury. Fitzgerald v. City of Binghamton, 40 Hun, 332; affirmed 111 N. Y., 686 ; 19 N. Y. State Rep., 931; Ivory v. Town of Deerpark. 116 N. Y., 476; 27 N. Y. State Rep., 643; Jewhurst v. City of Syracuse, 108 N. Y., 303; 13 N. Y. State Rep., 623.

We are also of the opinion that whether the plaintiff’s intestate was free from contributory negligence was, under the evidence, a question for the jury and properly submitted to it. There was considerable evidence introduced by the defendant which tended to show that the decedent was intoxicated at the time of the accident, and that such intoxication did, or might have, contributed to or caused the accident which resulted in his death. On the other hand, the plaintiff introduced the evidence of persons who were present when the accident occurred, as to how and under what circumstances it happened, which tended to show an absence of contributory negligence.

If it were admitted that the decedent was intoxicated at the time, that fact alone would not establish contributory negligence on his part. It would be at most a circumstance for the consideration of the jury in connection with the other facts in the case. If the jury had found that the decedent was intoxicated, and that such intoxication contributed to the accident, it might have barred a recovery. Lynch v. Mayor of New York, 47 Hun, 524; 15 N. Y. State Rep., 103 ; Fitzgerald v. City of Binghamton, 40 Hun, 332, 336; affirmed 111 N. Y., 686; 19 N. Y. State Rep., 931. But the jury having found upon all the evidence that the decedent was free from contributory negligence, we think its verdict should be upheld.

We find no error in the refusal of the court to non-suit the plaintiff because she failed to prove that the defendant had actual notice of the defect complained of. The contention of the defendant is, that § 15 of chapter 127, Laws 1877, is applicable, and hence, that such notice was necessary to a recovery by the plaintiff. That statute provides that the defendant shall not be liable for any injury sustained by a person in consequence of any sidewalk or cross-walk being out of repair, unsafe, dangerous, obstructed by snow, ice, or otherwise, unless actual notice of such condition shall have been given to the common council, the board of public works, or the superintendent of public works, at least forty-eight hours previous to such injury. The trial court held that that statute was not applicable - to this case. It will be observed that the statute relates only to side-walks and cross-walks and does not relate to other defects in the street We think the court properly held that the statute was not applicable.

On the trial the court charged: “It was the duty of the defendant to protect the public under the circumstances of the case and in the light of surrounding circumstances from danger by the exercise of ordinary care and prudence to guard against it. ” It also charged: “ The burden (of showing intoxication) rests upon the defendant. The question of the effect of intoxication is to be viewed in the light of all the circumstances surrounding the accident” The defendant’s counsel then said : “ On the last proposition we think that the burden is upon the plaintiff to show the absence of negligence on the part of the plaintiff’s intestate.” To which the court replied: “The burden upon them is to show that the deceased was guilty of no act of negligence that caused or contributed to the injury. They have attempted to show that.

Having attempted to show that and you having shown his intoxication, it is for the jury to say whether that intoxication caused or contributed to the injury, and, if so, then he is not free from contributory negligence on his part.” To this portion of the charge the defendant .excepted. We do not think the exception well taken. When the whole charge is considered together, it was quite as favorable to the defendant as it was entitled, and the jury could have been in no way misled thereby to the prejudice of the defendant.

We have examined the several rulings of the court on the admission and rejection of evidence to which our attention has been called in the appellant’s brief, but have found none that would justify a reversal or that require discussion.

We think the case was properly submitted to the jury; that the evidence was sufficient to sustain the verdict; that there were no exceptions that require a reversal, and, therefore, that the judgment and order should be affirmed.

Judgment and order affirmed, with costs.

Merwin, J., concurs.

Hardin, P. J.

I concur in the foregoing. I think the doctrine laid down by the court in Maxim v. The Town of Champion, 50 Hun, 88; 23 N. Y. State Rep., 949, applies. That case was affirmed 119 N. Y., 626; 28 N. Y. State Rep., 978. According to the verdict, the defendant neglected a duty resting upon it, and by reason thereof the injury was sustained, and the verdict should be sustained.  