
    Masters v. City of Troy.
    
      (Supreme Court, General Term, Third Department.
    
    December 31,1888.)
    1. Municipal Corporations—Icy Pavements—Evidence—Similar Accidents.
    In an action for injuries sustained by slipping on an icy sidewalk, plaintiff may show that at about the time of the accident other persons had slipped and fallen at the same place.
    
    8. Same—Notice to City—Distance from City Hall.
    Where constructive notice to the city of the defective sidewalk is sought to be shown, the distance from the place of the accident to the city hall may be shown.
    8. Same—Contradictory Evidence—Former Statement.
    Where the claim-of the plaintiff filed with the city authorities states the place of the accident as near a certain corner, and the proof on the trial shows that it was about 65 feet from such corner, no material discrepancy exists.
    4. Same—Instructions—Inspection of Streets.
    It is not material as to what officer was charged with the duty of inspecting the streets, and a refusal to charge as to such duty is not error.
    5. Same—Evidence to Sustain Verdict—Accumulated Ice.
    The evidence showed that on the day of the accident about one-tenth of an inch of snow had fallen, and that in the 10 days preceding not more than five-tenths of an inch had fallen. It had thawed some in the first portion of this period of 10 days. The ice at the place of the accident was rough and uneven, looked like old ice, and extended the width of the walk. Held sufficient to justify the jury in finding that there was such an accumulation of ice as to constitute constructive notice to the city.
    
    Appeal from circuit court, Bensselaer county.
    Action by Alice M. Masters against the city of Troy. Judgment for plaintiff, and defendant appeals.
    Argued before Learned, P. J., and Landon and Ingalls, JJ.
    
      JR, A. Parmenter, for appellant. A. C. Comstock, for respondent.
    
      
       Respecting the admissibility of evidence of similar accidents occurring at about the same time and place, in actions for negligent injuries, see City of Topeka v. Sherwood, (Kan.) 18 Pac. Rep. 933, and note; Moore v. City of Richmond, (Va.) 8 S. E. Rep. 387, and note.
    
    
      
       As to the liability of municipal corporations for injuries caused by icy and slippery sidewalks, and what is constructive notice of such defects, see Duncan v. City of Buffalo, 2 N. Y. Supp. 503, and note; Adams v. Town of Chicopee, (Mass.) 18 N. E. Rep. 231, and note; Gram v. Village of Greenbush, ante, 76; Gallagher v. City of St. Paul, 28 Fed. Rep. 305. and note.
    
   Learned, P. J.

This is an action to recover a compensation for injuries sustained by slipping on an icy sidewalk on the south side of Broadway, in Troy. The defendant’s first objection is that the court permitted a witness to testify that subsequent to the accident, and the same afternoon, she slipped on the ice at the same place, and also that she saw another person slip about the same time at that place; also that another witness was permitted to testify that three or four days previous to the accident he also fell on the same sidewalk. Bow, this evidence was given to show the actual condition of the sidewalk; that it was slippery. Of course, this did not touch the question ■whether its condition was caused by natural causes or otherwise. It merely ■showed, or tended "to show, what the condition in fact was. It was certainly •competent to show that the walk was slippery, and the satisfactory proof of that was that persons had slipped upon it. We think that decisions have established the competency of this evidence. Quinlan v. Utica, 74 N. Y. 603; Pomfrey v. Saratoga Springs, 104 N. Y. at 469, 11 N. E. Rep. 43.

The defendant also objected to proof of the distance between the city hall and the place where the accident happened, the residence of the city engineer, and the way he went to his office. It is not claimed in this case that there was •actual notice of the obstruction. As to constructive notices, it has often been urged, and with force, that a city like Troy has many miles of sidewalks, and hence a difficulty or impossibility arises as to knowledge by the authorities of the actual condition of all the sidewalks. Hence, in judging of the constructive notice, it seems proper to inform the jury of the situation of the place where the accident happened, and of its relative position to such a public building as the city hall. As to the residence of the city engineer, it proved after-wards that the witness (who testified to his residence and his course of walking) was not engineer at the time of the accident; so that the testimony had no weight on this point, whatever.

The next point is that plaintiff should have been nonsuited by reason of a discrepancy between her claim as filed with the commissioner and her proof on trial. The claim stated that she was injured by falling on the sidewalk, south side of Broadway, between Second and Third streets, near the ■corner of Broadway and Third. The proof was that she fell on that sidewalk about 65 feet from that corner. There is no discrepancy here. It is not intended that the claimant shall state in the claim the exact spot where the accident happened, at the peril of being defeated in his action if he make a mistake of a few feet. Sixty-five feet,are less than the front of three ordinary city houses. One who was within the width of three houses of a corner would not be accused of falsehood if he said he was near the corner.

The defendants also except to the refusal of the court to charge the first request. On examining the charge, it seems to us that the court had so fully -stated the law j ust as the defendant asked, that the repetition would have been needless.

The next request was that the duty of inspecting the streets was limited to the city superintendent. The duty of keeping streets in good condition, what•ever that duty be, rests on the city. This action is for the neglect of the city. It is immaterial whether the city does, or neglects, this duty, through one officer or another. It was not for the plaintiff to show what officer was charged with the duty. 27or was it material that there should be any charge on that point. We see no error in the charge.

The remaining question arises on the other alleged grounds of nonsuit, that there is no sufficient evidence of negligence or of notice, actual or constructive. The accident occurred between half past 12 and 1, December 21st. That morning there had been about one-tenth of an inch of snow, equaling one-hundredth of rain. On the 15th there had been one-tenth of an inch of snow. Hardly any after that. Two-tenths on the 13th, and the same on the 10th. On the 10th and 11th, 13th and 14th, the thermometer was above freezing at .its maximum. The ice was rough and uneven, and looked like old ice; in bunches; hard and rough; three or four inches in places. It extended the width of the sidewalk; most all the way around the corner; all around the Warren residence; had been so a week or 10 days. Mr. Warren, the owner of the property, usually moved into his house between the 10th and 2d of December, but could not tell what day he moved in the year of the accident, and could tell nothing as to the condition of the sidewalk. His employes, who had been generally directed by him to keep the sidewalk clean, could not say that ■there was not ice there in December, 1882. There certainly was evidence to justify the jury in finding that there had been an accumulation of ice at this-place for several days. It is not altogether easy to determine what the law is. on this subject under recent decisions; but, from a comparison of those decisions, we think the rule must be that where there has accumulated a mass-of rough ice in some one place, upon a sidewalk which has been there fora time long enough to give constructive notice to the city, then the city may be liable; but that when the ice on the sidewalk is the result of some rain or snow which has made all the sidewalk slippery, then it cannot be negligence-for the city not to remove it. In that view of the law, this case was one for the jury. The condition of the sidewalk was not one common to all the sidewalks; that is, it was not one of those unavoidable conditions that occasionally exist in this climate. But it was (or at least there was evidence that it might, haye been) the result of inattention on the part of the city to the gradual accumulation, at a spot shaded from the sun, of ice formed by alternate melting and freezing. We do not think it necessary to discuss and quote from the-recent opinions. They are familiar to the profession; and, if there still re~ $nains any doubt as to the exact rule of law which has been established, it must be for the higher court to settle it. Judgment and order affirmed, with, costs.

Ingalls, J., concurs.

Landon, J.

It was old ice, “bunchy,” “uneven,” and “irregular,” and" therefore the jury might find that it ought to have been attended to, and that,, too, before it became old. I concur.  