
    John B. Kunz, as Adm’r, etc., Resp’t, v. The City of Troy, App’lt.
    
      (Supreme Court, General Term,, Third Department,
    
    
      Filed May, 1888.)
    
    1. Municipal corporations—Obligations of to remove dangerous obstructions FROM STREETS.
    A municipal corporation is under an obligation to remove dangerous obstructions from its streets after notice, either actual or constructive, of their presence.
    2. Same—Question of notice is for the jury.
    Whether a municipal corporation has received notice of the presence of dangerous obstructions in its streets is for the jury to determine.
    3. Opening of case—Should only state nature of action and facts THAT MAY BE PROVED.
    Counsel in opening his case should state nothing but the nature of the action and the facts of the case as they may be proved, but the latitude to be given to the opening rests largely in the discretion of the trial judge.
    Appeal by the defendant from a judgment entered on the verdict of the jury for $3,566.21 in favor of the plaintiff, being for damages, interest and costs, and also from an order denying defendant’s motion for á new trial upon the coming in of said verdict.
    
      R. A. Parmenter, for app’lt; E. L. Fursman, for resp’t.
   Learned, P. J.

—Aman in the employ of one McLaughlin placed on the sidewalk in front of the Laughlin building a counter, leaning it against the building. This was on Tuesday. The counter remained in the same position without falling until Saturday afternoon. Then three children, about five or six years old, of whom the plaintiff’s intestate was one, pushed it down. It fell on the plaintiff’s intestate and he was killed. This action is to recover against the city damages for that death. In the case of Parker v. Cohoes (74 N. Y., 610, affirming 10 Hun, 531), the city of Cohoes had, itself, put piles of dirt in the street and had placed a barrier to prevent persons from driving upon these piles. This barrier was removed by some third person, for what reason did not appear, and the plaintiff drove on the piles and was injured. There was no proof whether the removal was intentional or accidental. The court said that the defendant was not bound to anticipate mischievous or wrongful acts, and hence was not bound to guard against them, and that the omitting to do so was not negligence. And this was held even in regard to an obstruction put in the street by the city itself. In the present case it has been held (104 N. Y., 344; 5 N. Y. State Rep., 642), that “the death of the intestate; caused by the falling of the counter, demonstrates that it was a dangerous obstruction on the sidewalk.” Although, as remarked, “it is quite probable that it would have fallen without the agency and contact of the children who were playing about it.”

This throwing down of the counter may have been a mischievous or wrongful act of the children. It might have been intentional; the act, not' the result, as in the case first cited. It is also held that neglect to remove such counter or similar thing, makes the city liable, if it had notice, either actual or as it is called, constructive. That decision seems to leave nothing for the jury but the question of notice. For since the result, viz.: the death of the intestate, through the throwing down of the counter by himself and the two other children, demonstrated that the counter was a dangerous obstruction, it was not open to consideration whether, previous to its fall, the counter had been such a dangerous obstruction. On the question of notice to the city, it would seem that the duty to remove obstructiohs, the neglect of which duty would make a city liable to an injured person, must come from the knowledge of their dangerous character. In the case of an imperfection in the street, the dangerous character is apparent. Such was the case of Goodfellow v. Mayor (100 N. Y., 15). So in the case of Rehberg v. Mayor (91 N. Y., 137), the pile of brick which fell in two days, was shown by proof to be faulty in its construction, and dangerous in a way apparent to ordinary observation, before it fell of itself. But in the present case, the city authorities might have seen, for nearly five days, that the counter stood undisturbed by the action of the elements. And if they ought to have discovered its dangerous character, it would have been only “by anticipating mischievous or wrongful acts on the part of others,” which, according to the case in 74 N Y., 610, they were not bound to do. It may, however be, that the language of the court at the conclusion of the Rehberg case, is intended to include even cases where the danger comes from the act of a third party, as if, in that case, the pile of brick, instead of falling of itself, had by some person been thrown down upon the plaintiff.

The court there say that the city is responsible, although it had not, by actual examination, ascertained its (the obstructions) dangerous character. 'Whether that remark applies to cases where the obstruction is so secure that it will do no harm, if let alone, we cannot say. If so, this seems to extend rather largely the liability of cities. A dry goods box on-the sidewalk is an obstruction. If thrown down by one boy to the injury of another, it would seem to be demonstrated to be a dangerous obstruction; and if it had stood long enough on the sidewalk, the city would be liable to the injured boy. This appears to follow from the opinion thus construed. We see no error in the charge of the court that the city was bound to active vigilance. Passive vigilance would be no vigilance at all. So we think that it was for the jury to say whether the time during which the counter had stood on the sidewalk was enough to make the city responsible. Of course juries do not take into account the extent of roadways in a city and other circumstances mentioned in the opinion in this case. This defendant has some fifty miles of streets and alleys, making apparently some hundred miles of sidewalks. In each of the five days (nearly) which this counter stood on the sidewalk the city authorities should, therefore, have examined, according to the verdict, twenty miles of sidewalk for large objects which might be thrown over by children, or might be otherwise dangerous. Probably no one believes that the jury really thought that it was negligence for the city not to inspect for this purpose twenty miles of sidewalk each day. What the jury did consider was the grief of the father.

But this doctrine of constructive notice is settled, and we must follow it. The fifth request of the defendant seems to be answered by what has been already cited from the opinion and the reply thereto of the court of appeals. The seventh request relates to the language, “voluntary and culpable negligence;” on examining this request of the court and the language of the court in its charge we do not see any error. As a duty is imposed on the city to remove obstructions after notice, actual or constructive, neglect is culpable; and can hardly be called involuntary. Objection was made by defendant’s counsel to language used by plaintiff’s counsel in his opening, to his stating the amount of the former verdict and the purport of former decisions.

We think that this is a matter so much within the discretion of the trial judge that we should seldom review this action. Of course, in strictness, counsel in opening should state nothing but the nature of the action and the facts of the case as they may be proved. We cannot see that harm was done in this case. On the whole we think that the case was tried according to the law as it was stated in the opinion of the court of appeals. As the decision of that court granted a new trial, the proof must have been held to make a case for the jury on all the points of defense. And the testimony was substantially the same now as on the former trial.

Judgment and order affirmed, with costs.

Landon, and Ingalls, JJ., concur.  