
    Terrence O’Reilly, Resp’t, v. The President and Trustees of the Village of Sing Sing, App’lts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed May 14, 1888.)
    
    1. Municipal corporations—Street—Traveler has a right to assume THAT IT IS SAFE.
    A person who is rightfully using a public highway without notice of any defect therein has the right to assume that it is reasonably safe for travel.
    2. Same—Notice of defect in street—Evidence—Sufficiency.
    The hole in the sidewalk had existed for at least a week before the accident in question, and one of the board of trustees of the defendant village had to pass it several times a day. Held, that there was evidence to sustain a finding that the trustees of the village had notice of the defect.
    Appeal from a judgment in favor of the plaintiff entered upon the verdict of a jury rendered at the Westchester county circuit and from an order denying a new trial upon the minutes.
    The evidence showed that the hole in the sidewalk had been there for a week or more before the accident occurred. At the time of the accident one James Maguire was a member of the board of trustees, and lived almost directly across the street from where the hole in the sidewalk was. Maguire had to pass this place several time a day in going and coming from his business.
    
      Francis Larkin, Jr., for resp’t; John Oibney, for app’lts.
   Pratt, J.

—This is an appeal from a judgment entered upon a verdict of a jury and from an order denying a new trial upon the minutes.

The action was for personal injuries sustained by plaintiff by reason of falling into a hole in the sidewalk.

The evidence was conflicting, but there was no such preponderance in favor of the defendant as to justify setting aside the verdict. All the questions were fairly and clearly presented to the jury in a charge as favorable to the defendant as the evidence warranted. The question of plaintiff’s negligence was a proper one for the jury. The place where he received his injuries was a public highway, and a person rightfully using it, without notice of any defect, had a right to assume it was reasonably safe for travel. Whether he was negligent in failing to see the danger was a question for a jury to determine, in view of all the facts and circumstances surrounding the transaction.

The plaintiff fully described all that happened prior to. the accident, and if his testimony was to be believed, he made out a case of due care upon his part.

That the street was out of repair is proved by a preponderance of evidence. Upon the question of notice to the village of the defect the evidence was conflicting, but it is ample upon the part of the plaintiff to sustain the verdict. It was a fair inference that the defect had existed for at least a week prior to the accident, and considering all the circumstances, the inference of notice as found by the verdict must be upheld.

We have examined with care the exceptions taken, and find no error sufficient to warrant setting aside the verdict.

The charge taken with the requests charged was more favorable to the defendant than the law and facts warranted.

The judgment and order must be affirmed, with costs.

Barnard, P. J., concurs; Dykman, J., not sitting.  