
    Anna Stedman, App’lt, v. City of Rome, Resp’t.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed July 5, 1895.)
    
    1. Municipal corporations — Streets—Notice.
    A provision in the charter of defendant that it shall not be liable for injuries caused by the defective condition of its sidewalks unless actual notice of such condition has, prior to the injury, been given to the mayor or common council, does not apply where the defect was created by the city officers.
    2. Same — Notice op claim.
    The notice of a claim, against the defendant for personal injuries, served in this case, was held to be sufficient and a substantial compliance with the provisions of defendant’s charter.
    Appeal from a judgment, dismissing the complaint with costs, and from an order denying a motion for a new trial made on the minutes.
    
      Goorge T. Davis and M. H. Powers, for app’lt; A. D. Kneeland, for resp’t.
   Martin, J.

— This action was to recover damages alleged to have been sustained by the plaintiff by reason of the negligence of thb defendant. On the trial the plaintiff was nonsuited. The grounds o£ the motion were : (1) That the evidence did not establish the fact that the injury complained of was caused solely by the negligence of the defendant; (2) that the plaintiff did not snow that she was free from contributory negligence; and (3) that the notice of the injury presented to the common council of the. defendant was insufficient. The court held the notice sufficient, but granted the defendant’s motion, and refused to submit to the jury the questions of the defendant’s negligence and the plaintiff’s freedom from contributory negligence. Prior to the-time of the accident, the defendant, by its superintendent of streets, had erected upon and across the sidewalk of Henry street, a public street of the city, a bridge, which was seven inches' above the level of the sidewalk, and sloped on each side from the bridge to the sidewalk. The plaintiff,, while passing over the sidewalk and bridge at that place, fell and broke her arm or wrist.

A careful examination of the evidence contained in the appeal book, renders it clear, we.think, that the question of the defendant's negligence was one'of fact for the jury. Clemence v. City of Auburn, 66 N. Y. 334; Urquhart v. City of Ogdensburgh, 97 id. 238 ; Bullock v. Mayor, etc., 99 id. 654. Goodfellow v. Mayor, etc., 100 id. 15; Cohen v. Mayor, etc., 113 id. 532 ; 23 St. Rep. 509 Pettengill v. City of Yonkers, 116 N. Y. 558; 27 St. Rep. 531; Bishop v. Village of Goshen, 120 N. Y. 337; 31 St. Rep. 490; Gillrie v. City of Lockport, 122 N. Y. 403; 33 St. Rep. 636; Keane v. Village of Waterford, 130 N. Y. 188 ; 41 St. Rep. 291;. Colburn v. Trustees, 15 St. Rep. 668; affirmed, 114 N. Y. 617; Higgins v. Village of Glens Falls, 33 St. Rep. 111; affirmed. 124 N. Y. 666; Sherman v. Village of Oneonta. 49 St. Rep. 267; 21 N. Y. Supp. 137; affirmed (N. Y. App.), 60 St. Rep. 867; 37 N. E. 566 ; Goff v. Village of Little Falls, 47 St. Rep. 729.

The provision of the defendant’s charter which provides that it shall not be liable for any injury caused from its sidewalks being-out of repair, or unlawfully obstructed or dangerous from snow or ice, unless actual notice of the unsafe condition thereof has, prior to such injury, been given to the mayor or common council, is not, we think, applicable to this case, as the obstruction complained of was created by the defendant’s officers, and, therefore, it had full notice of its existence. Riddle v. Village of Westfield, 65 Hun, 432 ; 48 St. Rep. 48; Brusso v. City of Buffalo, 90 N. Y. 679; Wilson v. City of Troy, 135 N. Y. 96; 48 St. Rep. 364.

We are also of the opinion that, under the evidence, the question whether the plaintiff was free from contributory negligence was one of fact, and should have been submitted to the jury. Contributory negligence is a question of fact, and should be left to the jury, unless it so clearly appears from the circumstances or uncontradicted evidence as to leave no inference of fact in doubt. It is only in very exceptional cases that it can be adjudged as a necessary legal conclusion from the facts found. Thurber v. Railroad Co., 60 N. Y. 326; Massoth v. Canal Co., 64 id. 529; Greany v. Railroad Co., 101 id. 419, 423; Kellogg v. Railroad Co., 79 id. 72.

The defendant’s charter also contains the following provision: “ All claims against the city for damages for injuries to the person, claimed to have been caused or,sustained by defects, want of repair, or obstructions from snow or ice, or other causes in the highways, streets, sidewalks or -crosswalks of the city, or because of negligence of the city as to the highways, streets, sidewalks or crosswalks of the city, shall be presented to the common council in writing three months after said injury is received. Such writing shall describe the time, place, cause and extent of the injury, so far as then practicable, verified by the oath of the claimant. The omission to present said claim, as aforesaid, within three months, shall be a bar to any claim or action therefore against the city.” Within the time required by this provision, the plaintiff presented to the common council a duly vertified claim, which described the time, place, cause and extent of her injury, as follows: “That heretofore, and on or about the 24th day of November, 1893, while your petitioner was lawfully traveling upon the street and sidewalk in the said city known as Henry street, and going westerly towards West street, and just before reaching a point on said street where the same connects with West street, and near an artificial structure known as a bridge, your petitioner, by reason of the imperfect character, slope, construction, and condition of said street and bridge and without any negligence on her part and solely by the negligence of said city, its officers, employes, agents, and servants, — your petitioner then and there received a fall by reason of the condition of the street and bridge, as aforesaid, and by the fall so received your petitioner broke her left arm, and was in consequence thereof made to suffer great pain, and was disabled,- and prevented from her usual avocations for some time, and will be so prevented for an indefinite period in the future. Tour petitioner prays that your honorable body will award her the damages which she has suffered which are at least in the sum of $1,500 and which the petitioner hereby presents as a claim against the city of Rome aforesaid.” The respondent still insists that this notice was insufficient, although the court held otherwise, and now seeks to sustain the non-suit upon that ground. We are of the opinion that this notice was sufficient, was a substantial compliance with provisions of the defendant’s charter, and hence that the respondent’s insistence cannot be sustained. Sullivan v. City of Syracuse, 77 Hun, 440 ; 60 St. Rep. 674; Werner v. City of Rochester. 77 Hun, 33; 59 St. Rep. 439; Masters v. City of Troy, 50 Hun, 485; 20 St. Rep. 273; Cross v. City of Elmira (decided by this court, but not yet officially reported) 68 St. Rep. -. It follows that the judgment should

be reversed.

Judgment and order reversed on the exceptions, and a new trial granted, with costs to abide the event.

All concur.  