Bishop v. . Village of Goshen

Potter, J. This action was brought to recover damages which the plaintiff alleged she had sustained by reason of a fall upon the sidewalk of the defendant, caused without any fault upon her part, and through the negligent and improper manner of constructing the sidewalk and curbing, and of the unsafe and unsuitable materials of which the curb was constructed, and through negligence in permitting the same to remain in that condition to the time of the fall and injury. The complaint also alleges that the defendant negligently per *340 mitted the same to become out of repair and dangerous and unsafe for a long time prior to the time of the accident, and also that the defendant negligently permitted the ice and snow to accumulate and to remain upon said sidewalk and that after notice of the same, etc. From the matters stated in the complaint it might be supposed that the plaintiff intended to establish the liability of the defendant for the injury to the plaintiff upon the several grounds; that the plan or design of the sidewalk and curbing was defective, upon the ground that they had become out of repair and dangerous and unsafe, and also, upon the ground that the defendant had negligently permitted an accumulation of snow and ice upon the sidewalk. In the course of the trial, and prior to the charge, the court had, by its ruling, eliminated from the grounds of liability of the defendant, the alleged defective plan of the construction of the sidewalk, and the plaintiff, by her own testimony, proved that she slipped and fell upon the sidewalk, and thus eliminated from the case the alleged defect in the curbing, as a ground of liability. I should say here, that the alleged defect in the curbing consisted in using for the curb, wood instead of stone, and that it wore unevenly, leaving the knots in the wood curb to project higher than the rest of the wood. The only remaining ground, therefore, to base the liability of defendant upon was the alleged accumulation of snow and ice upon the sidewalk. In respect to the latter ground, the proof in the case showed this state of facts : that a very few days before the accident there had been a storm of- rain and snow, and that the snow melted somewhat, became soft and wet, and the water flowed along the sidewalk; and that the weather suddenly became cold and froze the snow and the water and they remained so from the end of the storm to the time of the happening of the accident. The proof also showed there was an awning over the sidewalk and that there was and had been no snow upon the sidewalk near the point where the plaintiff slipped and fell. The proof, however, showed that there was ice upon the sidewalk *341 where the plaintiff slipped and fell, and proof was introduced tending to show that during the storm the defendant’s servants, in cleaning the crosswalk (which was near the point in the sidewalk where the plaintiff fell) of snow, cast the snow upon a grating through which the water along the sidewalk was accustomed to flow into drains or sewers, and thus prevented its flow through the grating and turned it upon the sidewalk, where it froze and formed the ice upon which the plaintiff slipped and fell. This was the only theory remaining upon the trial upon which to base the plaintiff’s recovery and we must presume, upon this appeal, that the defendant’s liability was based upon that ground. There was evidence sufficient in this case to justify the verdict of the jury upon that ground, and we do not think this court can interfere with such finding. I do not think there are any exceptions to rulings upon evidence or in relation to the charge which should interfere with the operation of the ordinary .and safe rule that all intendments should be made by appellate courts in support of a judgment, and that no speculation as to possibilities should be allowed to reverse or to set aside a verdict. Indeed, I do not understand the appellant’s counsel to urge upon this appeal error in the charge of the court, in response to plaintiff’s request that: “ I ask your honor, also, to charge the jury that if they find from the evidence that the plank curbing standing above the level of the sidewalk was, of itself, dangerous to public travel, and that was the proximate cause of the injury to the plaintiff, the defendant is guilty of negligence in allowing it to remain for so long a time.” The court, in response to that request, said: “ I charge that if they find that it was dangerous to public travel it would be, of course, negligence. The question of fact for the jury to determine is whether it was or was not dangerous. Defendant excepts.” I am, moreover., inclined to think that the counsel should be precluded from insisting that there was reversible error in the response. *342 There were two propositions in plaintiff’s request. One of them only was referred to in the response of the court. The other was not referred to. The exception was too indefinite to be available as error. It did not indicate whether the exception was for the reason that the court did not charge in respect to one of the propositions or charged erroneously as to the other proposition. It is due to a court that it be made aware of the specific ground of exception, to the end that it may correct error and avoid all grounds of misapprehension. jSTor did the defendant use or suggest his exception in the specification of the grounds of his motion to set aside the verdict. According to the evidence in the case and the contention of the defendant and the rulings of the court, there was no liability on account of the wood curb in any respect. •The instruction in that regard was in no wise pertinent or applicable to the case, and was, as to this case, an abstract proposition. Moreover, as an abstract proposition, the request was doubtless correct under the circumstances stated in the request, viz.: That a plank curbing standing above the level of a sidewalk, and that that being the proximate cause of the injury, the defendant might be guilty of negligence if it w-as allowed to remain so for a long time, and that a dangerous thing to public travel is negligence, or, perhaps, more precisely, is evidence of negligence. But all chance of misapprehension, upon the part of the jury, from the remarks of the learned trial court upon the dangerous character of the curbing, in its relation to the sidewalk, and to which the defendant had excepted, was entirely removed from the case when the court Refused plaintiff’s request: “ I also ask your honor to charge that the permitting this plank curbing to remain, with the knots protruding above its surface, for the length of time which.it is proven in this case to have remained in that condition, was negligence upon the part of the defendant; and if the jury find that those knots caused the injury which came to the plaintiff, the defendant is liable.” And this is made still more obvious *343 when the court added to its remarks, at the request of the defendant, “ that the jury must, in that event, find that U (the curbing) was not the cause of her slipping and falling upon the sidewalk.” The judgment should be affirmed with costs.