
    John McGoldrick, Ad’mr, Resp’t, v. The New York Central & Hudson River Railroad Co., App’lt.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed December 9, 1892.)
    
    1. Railroad—Negligence—Charge.
    Defendant, a railroad company, constructed a plank hopper and sewer to carry off water which dripped from its water column and spout, the end of which when turned off was about four feet from the sidewalk; but said sewer had become clogged, and the water passed onto the sidewalk and made it icy. Plaintiff’s intestate fell on this sidewalk, and drove a tanner’s knife, which he carried wrapped up in some clothes, into his side, causing his death. Held, that a charge that the defendant could not be held liable except upon the theory that, its failure to provide a place for the water which was allowed to escape from its pipe made the walk more dangerous than it otherwise would have been, was sufficiently favorable to defendant.
    2. Same.
    Intestate’s widow testified that she wrapped the knife, which her husband carried, in a newspaper, and then wrapped his working clothes around it, then did it up in another bundle, and put a cotton and wool cloth garment around this, and knotted 'it tight, this being the manner in which he had carried the knife for years, and never had any accident. Held, that if the jury believed, as they had a right to do. that the knife was wrapped up as testified to, and that the deceased was accustomed to carry it that way without injury, it should not be said, as a matter of law, that deceased was negligent.
    Appeal from a judgment entered in Oneida county, February 4, 1892, upon a verdict rendered at the Oneida circuit, January, 1892, in favor of the plaintiff for $2,500; also, from an order denying a motion on the minutes for a new trial.
    
      The action is to recover damages for the death of John Mc-Groldrick, which occurred at the city of Eome, on the 10th of February, 1890. In one count of the complaint it is alleged that the death was caused by the wrongful and illegal act of the defendant in permitting water to flow from its water pipes or tank on to the sidewalk on James street, fronting the premises of defendant, and allowing such water to accumulate and freeze, so that the sidewalk became icy and dangerous and an obstruction to the public, by reason of which the deceased slipped and fell, and was fatally injured. The second count is substantially the same, except that negligence is charged.
    
      C. D. Prescott, for app’lt; McMahon & Curtin, for resp’t.
   Merwin, J.

On the 10th February, 1890, John McGfoldricky the plaintiff’s intestate, fell at or near the station of defendant, at Eome, and received an injury from which death ensued. At that station, and near the sidewalk that passes on the west side of James street from the southerly track of defendant to a branch track leading to the track of the Hew York, Ontario & Western Eailroad, the defendant maintained a water column and spout, from which its engines obtained water. The end of this spout, when turned off, was about four feet from the sidewalk, and water was accustomed to drip or flow therefrom upon occasions when it was used and turned off. Directly under the end of the spout where it was turned off, and for the purpose of taking off the overflow, the defendant some years ago put in a plank hopper, and a plank sewer extended from there southerly across the Ontario & Western Eailroad to the end of the sewer on James street Over the top of the hopper there was placed a wire screen. There is evidence tending to show that the opening of this outlet or hopper was, prior to the accident, clogged up by ice or snow so that the surplus water did not pass off by the sewer, but did pass on to the sidewalk, and made it dangerously icy. The claim of the plaintiff is that his intestate slipped and fell on this sidewalk at the point where the ice had so accumulated. There is evidence tending to show that to have been the case. There is no claim that the defendant had any license from the city to obstruct the sidewalk.

The intestate was by trade a tanner and upon the day in question was upon his way to the place where he worked. He had with him in his hand or upon his arm a tanner’s knife, called a beam knife, that was used by him in his business. This was a large sharp knife, and the manner in which "it was wrapped up upon this occasion is described as follows by his wife: I wrapped this knife of my husband’s up in a newspaper; next wrapped it up tight in his working shirt; next wrapped his overalls around it and his working vest, and then wound a string all around it from the handle to the point as tight as I could, and then done it up in another bundle and knotted it tight I put another cloth over this that I knotted. The other cloth was cotton and wool; thick stuff. It was a garment that he took around it always on purpose.”

There was evidence that he was accustomed to carry it in this way. As he fell, he received a cut from the point of this knife that produced an hemorrhage that was the immediate cause of his death.

Whether the intestate fell by reason of any wrongful act or neglect of the defendant was, upon the evidence, a question of fact The defendant claims that there is no basis for a recovery because the obstruction was upon a sidewalk, and the city therefore only liable. It has, however, been held that an owner of adjacent premises who without authority interferes with a sidewalk for his private purposes and fails to restore it to a safe condition is liable to any one sustaining injury thereby. Smith v. Ryan, 29, St. Rep., 672; aff'd in 130 N. Y, 653; 41 St. Rep., 950. See, also, Mairs v. Manhattan Real Est. Ass'n, 89 N. Y., 503, and cases cited.

In the present case the court charged that the defendant could not be held liable except upon the theory that its failure to provide a place for the water which was allowed to escape from the pipe made the walk more dangerous than it otherwise would have been. This was sufficiently favorable to the defendant.

Upon the question of contributory negligence, the defendant claims that as matter of law the intestate was negligent in carrying his knife in the way he did. A witness on behalf of the defendant testifies that some time before the accident he told the deceased that, in carrying these tools, “ they ought to have a board on them or a shingle tied on to keep them from mishap, because if it were just merely wrapped in paper or cloth the knife is so sharp that it would slide through and do some damage,” and the deceased replied that he had used them for a great number of years, and. never had any accident. If the jury believed, as they had a right to, that the knife was wrapped up as testified to by the wife and that the deceased was accustomed to carry it that way without injury, it should not be said as matter of law that the deceased was negligent. Parsons v. N. Y. C. & H. R. R. R. Co., 113 N. Y., 364; 22 St. Rep., 697; Palmer v. Dearing, 93 N. Y., 7.

The defendant claims .that the deceased was intoxicated, but that was a disputed question and was for the jury. The fact that. the consequences of the fall were unusual is no defense if in other respects a liability existed. Wharton on Negligence, § 16 et seq. Ehrgott v. Mayor, etc., 96 N. Y., 281. See also 1 Shearman & Redfield on Negligence, 4th ed., § 36; Phillips v. N. Y. C. & H. R. R. R. Co., 127 N. Y., 657; 38 St. Rep., 675.

No sufficient reason for reversal appears.

Judgment and order affirmed, with costs.

Hardin, P. J., and Martin, J., concur.  