
    Jambs MoGarey, Appellant, v. The City of New York, Respondent.
    Negligence— injury from á falling limb of a tree — duty of the city to inspect the tree—proof of its failure to do its duty: in that respect.
    
    In an action brought to recover damages. for personal Injuries sustained by the plaintiff while, walking along one of the public streets in the defendant city, in Consequence of being struck by the falling limb of a tree, evidence was given tending to show- that the limb was three inches in diameter and from three to four feet long, and was without branches; that it was decayed all through and was covered with moss; that the tree was rotten at the point where the break occurred," and that branches had fallen from the tree during the month previous to the accident.
    
      Held, that the jury were justified in finding a verdict for the plaintiff;
    That it was incumbent upon the defendant to make proper examinations for the purpose of ascertaining the true condition of trees in public places;
    That the jury were justified in finding that notice of the condition of the limb , .which fell would have been communicated to the defendant had a proper inspection or examination been made, and that such an inspection would have disclosed the dangerous character of the limb, or would have imposed upon the defendant the duty of making a test of its strength.
    Bartlett and Jenks, JJ., dissented.
    Appeal by the plaintiff, James McGarey, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 11th day df December, 1902, setting aside the verdict of a jury theretofore rendered in favor of the plaintiff. " "
    
      Abram H. Dailey [Melville J. France with him on the brief], for the appellant.
    
      James McKeen [Patrick F. Callahan with him on the brief], for the respondent.
   Hooker, J.:

The plaintiff had the verdict of a jury in his action against the defendant for injuries sustained by him ás a result of being hit by a falling limb of a tree as he wás passing along one of the public streets in defendant city. Defendant’s motion to set aside the verdict, made before the entry of judgment, was granted by the court, and from the order setting aside the verdict the plaintiff appeals to this court.

The limb of the tree which caused the plaintiff’s injuries was about three inches in diameter and from three to four feet long. It is described by the plaintiff and his witnesses as being “ all rotten,” and as having no branches. It was noticed that it was decayed all through, and was covered with moss. One of the witnesses saw some of the branches fall off the tree upon the ground, during the month before the accident, and after that he never walked on the side of the street on which the tree stood. He says that the branch which fell was rotten, which could be observed by the black inside, and by the fact that “ the other part of the wood was crumbled.” One of defendant’s witnesses, a police officer., whose beat was in the vicinity, says that when the branch fell it did not break in two, but broke about half a foot off the end. He says it was decayed where it was broken off. The defendant’s evidence, in the main, tended to show that the tree was in foliage during the summer before the accident and the summer afterwards, and that there was bark on the limb that fell; that where the limb parted from the tree there was a fresh break; that the tree was a live tree, of brittle wood that breaks and falls easily.

The court submitted the issues to the jury fairly, and sufficiently pointed out to them the rules of law governing actions of this character.

Danaker v. City of Brooklyn (119 N. Y. 241) was an action to recover damages for the death of plaintiff’s intestate, alleged to have been caused by drinking unwholesome water from a well used gratuitously by the public, belonging to defendant and under its control, on the theory of the negligence of the defendant in failing to use reasonable diligence to keep the well in repair and to guard against any danger resulting from its use. Judge Earl, in a carefully considered opinion, in which he collated many English and American cases upon related subjects, had this to say in relation to trees in public places: “ Trees, bridges and other wooden structures will necessarily decay and become unsafe, and where they may thus become dangerous to human life the duty devolves upon the municipality to make tests and examinations, using reasonable diligeñce to ascertain whether they are safe or not... ( Vosper v. Mayor, etc., 17 J. & S. 296; Howard v. Legg 11 N. E. 614; Jones v. New Haven, 34 Conn. 13; Norristown v. Moyer, 67 Penn. St. 355.) ”

We believe that this expression of the Court of Appeals correctly states the law upon this subject, at least as to the duty-imposed upon the municipality to make proper examinations for the purpose of ascertaining the true condition of trees in public places. . We can hardly believe that the municipality should be held always to the duty of making extraordinary tests preliminarily; the failure to make tests may well be taken as a circumstance upon the subject of the defendant’s negligence, in ascertaining, after a preliminary examination, whether the safety of the public requires any alteration in a case where such examination has disclosed conditions from which suspicion of danger may fairly arise.

The jury by its verdict has found that the branch or limb' in question was without twigs or offshoots or smaller branches; that branches had, for a considerable part of a month prior to the happening of the accident, fallen to the sidewalk from the same tree; that there was moss on the branch and moss on the tree. Had circumstances so grave as these existed in relation to municipal sidewalks or streets, it would have raised a presumption of constructive notice of the defect, and we believe that there was evidence to support the finding of the - jury that notice of the condition of the branch of this tree would have been communicated to the defendant had proper inspection or examination been made.

We think, too, that the jury was justified in finding that such inspection ■ would have disclosed the dangerous character of the branch, or at least - have imposed upon the defendant the duty to make a test of the strength of the limb. There is evidence in the record to show that, at the point where' the break occurred, the tree was gotten. . In that case it can scarcely be denied that, had the ■test been made and defendant acted upon the showing thereof, the dangerous limb would not have been allowed to remain a menace to ■ travelers.

The order setting aside the verdict of the jury must, therefore, be reversed, and judgment entered upon the verdict, with costs, and the extra allowance granted at the trial, together with costs of this appeal.

Woodward and Hirschberg, JJ., concurred; Bartlett and Jerks, JJ., dissented.

Order setting aside verdict reversed, with costs, and judgment directed for the plaintiff on the verdict, with costs. 
      
      
        County of Howard v. Legg (11 N. E. Rep. 614).
     
      
      
        Jones v. City of new Haven.
      
     