
    Mary C. Stapleton, Respondent, v. The City of Newburgh, Appellant.
    
      Injuries caused by falling upon an icy sidewalk—proof as to the cause of the injuries — proof of the adoption by a municipality of land as a public street — excessive verdict.
    
    In an action brought against a municipal corporation to recover the damages resulting from personal injuries caused by the plaintiff having fallen upon ice, which had been permitted to accumulate and remain upon a sidewalk in its city, the clerk of the defendant testified that the street upon which was the walk in question, had never been opened or accepted by the defendant; that no grade line had ever been established thereon by the defendant, and that although a portion of it had been flagged,- that work had not been done by the defendant. It was shown, however, that there had been a public user of . the street in question for over twenty years, and that during the winter in which the plaintiff was injured the city had employed men to clean the street, and that notices had been served on the owner-of the property, where the accident occurred, to clean the sidewalk.
    
      Held, that there was sufficient proof that the defendant had adopted the street in question as a public street, assumed authority over it, and recognized its obligation to exercise some degree of care over it.
    Upon the trial the plaintiff’s son, who had made measurements five days after the accident, and had sworn that the condition of the sidewalk in question was the same then as it was at the time of the accident, testified, without objection, ■ to the thickness' of the ice upon such walk. Subsequently a witness, who. hack seen the former witness make the measurements in question, was permitted, against the defendant’s objection, to describe how such measurements were made.
    
      Held, that as no suggestion was made upon the trial that the place which the witness had examined was not the place at which the accident occurred, and as no objection was taken to the principal testimony upon that point, no error could be assigned because of the admission of evidence in confirmation thereof. The defendant further alleged that the plaintiff had failed to prove by specific statements that the ice and snow on the sidewalk were the cause of the accident.
    
      Held, that the testimony of eye witnesses of the accident as to the slippery and uneven condition of the sidewalk tended strongly to show that the accident was due to that cause; and that the question whether the plaintiff herself in any way contributed to the injury was properly left to the jury;
    That as the plaintiff’s leg was fractured and was kept in plaster for five weeks,
    - and still after the lapse of a year occasioned her discomfort in walking, a verdict of §1,100 was not, under all the circumstances, excessive, notwithstanding the fact that a complete recovery was to be expected.
    Appeal by the defendant, The City of Newburgh, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Orange on the '9th day of April, 1896, upon the verdict of a jury rendered after a trial at a Trial Term of the Supreme Court held in and for the county of Orange, and also from an order entered in said clerk’s office on the 10th day of April, 1896, denying the defendant’s motion for a new trial made upon the minutes.
    
      C. L. Wowing, for the appellant.
    ■ Grant B. Taylor, for the respondent.
   Willard Bartlett, J.:

The plaintiff recovered a verdict of $1,100 damages .for injuries received by falling upon Gidney avenue in the city of New-burgh, on the 25th day of January, 1895, at a point on the sidewalk which was at the time in a slippery, unsafe and dangerous condition for 'the passing and repassing of persons on foot, and which the defendant corporation had knowingly, and for a considerable period, allowed to remain in such condition..

The first assignment of error in the brief for the appellant is the reception of proof as to the thickness of ice on the sidewalk .of Gidney avenue five days after the accident, and at a point other than that where the plaintiff fell. The principal testimony on this subject was given by the plaintiff’s- son, without a single objection or exception on the part of the defendant. No suggestion was made that the place which he examined was not the place where his mother had fallen, and, although liis measurement was made five days later, he swore that the walk was in about the same condition then as it was when she fell. The only objection which the record discloses on this subject was made to the testimony of another witness, who saw the plaintiff’s son making this measurement and told how it was done. I cannot see why his statement in confirmation of that of the son was not entirely proper to be laid before the jury.

The next point which the brief brings to our attention is the alleged failure of the plaintiff to prove that the ice and snow upon the sidewalk were the cause of the accident. It is true there is no single sentence in which the plaintiff, or any of her witnesses, says in so many words that the slippery and uneven condition of the walk, occasioned by the accumulation of snow and ice caused her to slip and fall, but such is the fair inference from all the facts to which they testify. A few extracts from the record will show this. Thus we find in the cross-examination of the plaintiff herself: “Q. You saw it (the sidewalk) was slippery and rough and uneven % A. Yes, sir. Q. And you knew it had been in that condition a long time previous % A. Yes, sir.” A gentleman, who helped her up, testified : I noticed the condition of the sidewalk at the time. There was snow and ice on it.” And a lady, who was with the plaintiff at the time of the accident, swears: I was about two steps ahead of Mrs. Stapleton when she slipped and fell. The sidewalk had never been cleaned. '* * * The walk was very holey and hilly and

patted down in the center by pedestrians as if the children rode sleighs over it.” These statements, taken together with the testimony of the plaintiff’s son, that he found four inches and a half of ice there on the 30th of January, 1895, and that the place was then in about the same condition as when his mother fell, tend strongly to show that the accident was due to the uneven and icy state of the highway. Whether the plaintiff was in any way at fault herself and so contributed to the injury was a question properly left to the jury, which they determined in her favor.

It is also argued, that there is no proof that Gidney avenue -was a public street. The city cleric of Newburgh testified that it had never been opened by the city,- or accepted as a public street; that no grade line had ever been established thereon by the city, and, although there was flagging on a portion of the street, it was not put there by the city or at its instance. In answer to this, the plaintiff proved a public user of Gidney avenue as a street for twenty years; but the appellant relies upon the case of Speir v. Town. of New Utrecht (121 N. Y. 420) as upholding the proposition that even this user did not make it a highway unless it had been kept in repair, or taken charge of, or adopted by the public authorities. Evidence of such adoption, however, appears in the record, and was supplied by one of the witnesses for the defendant, who was the superintend- . ent of streets at the time the plaintiff was injured. During that winter, he said, he sent out notices after every storm to have side-. walks cleaned. “-1 had men employed by the city to clean the walks in case the owners did not do it. * * * Notice was served on

the owner of the property where accident occurred to clean the sidewalk. At the first snowfall, he received notice, and after that there was a notice served on him after every snowfall.” Here was proof which certainly indicated that the city had adopted Gidney avenue as a public street, assumed authority over it, and recognized the obligation of the municipality to exercise some degree of care in respect to its condition.

Another point upon which the appellant relies is the proposition that if new ice had formed upon the old ice which was said to have-been on the sidewalk for several weeks, and the plaintiff slipped upon the new ice, she was not entitled to recover without showing-that the old ice was a concurring cause of the accident.- In Lawless v. City of Troy (44 N. Y. St. Repr. 735) the plaintiff fell upon an icy sidewalk covered with freshly fallen snow, and a judgment in her favor was reversed because, upon the evidence, it was impossible •to determine whether the , old ice was a concurring cause without which the accident would not have happened; but in the case at bar there is really no proof that any new ice had formed where the plaintiff fell. There had been rain four days previously, but whether it resulted" in the formation of new ice, at this- spot or not in nowise appears. To hold that new ice had been formed there would be merely to speculate upon a possibility. Eo doubt the ice and snow melted to some extent and the water froze again with the changes of temperature, but the testimony as a whole indicates quite clearly that the accident was caused by an accumulation of snow and ice which had been in this part of Gridney avenue quite long enough to give the municipal authorities constructive notice of its presence.

That portion of the charge of the learned trial judge is criticised in which he referred to the absence of ashes from the place on the sidewalk where the plaintiff fell, but we do not find that any exception was taken in behalf of the defendant to what he said on this subject.

Tbb only other point requiring notice is the claim that the damages were excessive. The plaintiff’s leg was broken ; it was kept in a plaster of Paris cast about five weeks. Although the fracture was a simple one, and complete recovery is to be expected, the plaintiff still complained of discomfort in walking at the time of the trial, more than a year after the accident. Taking all the circumstances into account, we cannot say that-the verdict was too large.

The judgment and order appealed from should be affirmed.

■Judgment and order unanimously affirmed, with costs. '  