Cross v. City of Elmira

HARDIN, P. J. October 21, 1891, the plaintiff passed northerly on Oak street, until she reached the north side of East Washington [948] avenue; and, while passing between Oak street and Pratt street, she stepped into a hole in the plank, and fell on the cement walk, striking upon both of her knees, and received the injuries mentioned in her complaint, and minutely described in the evidence given at the trial. There was no sidewalk at the time on the south side of East Washington avenue between Oak and Sullivan streets, which is the street next east of Pratt street. As the plaintiff passed along the sidewalk, she knew there were holes in it, and she testified that she went carefully along; and, when she stepped into the‘hole, she was pitched forward, and struck her knees on the tar walk, which joined on the plank walk. The hole which she fell into was about six inches from the end of the tar walk, and she testifies that, when she fell, she hurt her knees badly. Abundant evidence was given tending to show that the walk at and near the place where she received the injuries was out of repair, and had been so for a year or more. While the plaintiff was giving evidence as to the defective condition of the walk in question, the court inquired of the defendant’s counsel, viz.: “I understand you don’t make any serious contention as to the condition of the walk;” and the defendant’s counsel, in response thereto, said: “We cannot help but concede that this walk was somewhat out of repair.” In the course of the charge the court observed: “The defendant here has practically made no contest at all upon the condition of this walk, or the length of time it had been there. Therefore, gentlemen, you will take little time to pass upon the question of the defendant’s negligence, inasmuch as the defendant’s attorney does not here contest it.” No exception was taken to that part of the charge. Upon all the evidence furnished by the plaintiff, it was proper for the court to submit the question of her freedom from contributory negligence, as one of fact, to the jury. Dale v. City of Syracuse, 71 Hun, 449, 24 N. Y. Supp. 968; Beltz v. City of Yonkers, 74 Hun, 73, 26 N. Y. Supp. 106; Sherman v. Village of Oneonta (Sup.) 21 N. Y. Supp. 137, affirmed 142 N. Y. 637, 37 N. E. 566; Leopold v. Canal Co., 74 Hun, 137, 26 N. Y. Supp. 1123. 2. By several motions for nonsuit, and by objections and exceptions to evidence, the appellant raised the question upon the trial as to the sufficiency of the notice of her claim given to the city, which the statute requires as a condition precedent to the right to maintain the action. In chapter 535 of the Laws of 1884, at page 649, the ninty-ninth section of the charter of the appellant was amended so as to read as follows: “All claims against the city for damages or injury alleged to have arisen from the defective, unsafe or dangerous condition of any street, highway, bridge, culvert, sidewalk or crosswalk of or in said city, or from negligence of the city authorities in respect to any such street, highway, bridge, culvert, sidewalk or crosswalk, shall, within three months after the happening of such damage or injury, be presented by or in behalf of such claimant to the mayor or city attorney in writing, signed by the claimant or his agent or representative attorney and duly verified by one of such parties, describing the time and location of the place where such injury occurred, cause and extent of the damage or injury. The omission to present such claim as aforesaid within said three months shall be a bar to any action or proceeding therefor against the city.” [949] It appears by the evidence that the distance between Oak street and Pratt street is about 368 feet, and that on the north side of East Washington avenue there was a plank sidewalk for about a distance of 150 feet. The notice given by the plaintiff was to the effect “that while walking eastward on the plank sidewalk on the north side of East Washington avenue, between Oak and Pratt streets, in said city, I [she] stepped into a hole in the said sidewalk, which had been negligently permitted to be and remain therein, and the said sidewalk then being in a defective, unsafe, and dangerous condition.” It was contended at the trial in behalf of the defendant that the notice was too general, and, in response to such contention, considerable evidence was received, tending to show that the defendant was not misled by the language used in the notice; and, at the close of the evidence, when the question was again brought to the attention of the court as to the sufficiency of the notice, the judge inquired of the counsel for the defendant, viz.: “Do you desire me to submit to the jury the question as to whether the city was misled?” And the defendant’s counsel responded, “No, sir.” After some discussion between the court and counsel, the judge again observed: “Do you desire to go to the jury upon the question as to whether they were misled by the generality of this notice?” And the answer of the defendant’s counsel was, “No, sir.” And in the course of the ruling-made by the court in refusing to nonsuit, upon the ground that the notice was insufficient, the court observed to the defendant’s counsel, viz.: “If you desire to, I will submit to the jury the question as to whether the city was misled by the general nature of that claim. If you don’t care for that, then I will hold, as a matter of law, that the notice of the claim is sufficient, and submit the case to the jury upon the other question.” To that ruling the defendant’s counsel took an exception. The language used in the defendant’s charter differs slightly from the language found in the charter of the city of Syracuse, referred to in Paddock v. City of Syracuse, 61 Hun, 8, 15 N. Y. Supp. 387. In that case the written notice was required to be given, “specifying the time, place, and cause of such injury”; and, according to the language in the statute now before us, the notice is to be given, “describing the time and location of the place where the injury occurred.” In the Paddock Case, the case of Noonan v. City of Lawrence, 130 Mass. 161, was referred to, which stated: “The notice must, to be sufficient, be so reasonably specific as to time, place, and cause as to be o£ substantial assistance to the proper authorities in investigating the question o£ their liability.” And the conclusion reached in the Paddock Case was that a substantial compliance by the plaintiff with the provisions of the statute was required. In Sullivan v. City of Syracuse, 77 Hun, 442, 29 N. Y. Supp. 105, a notice that had been given fell under consideration, and it was in effect held that a substantial compliance by the plaintiff with the provisions of the statute was sufficient. In Werner v. City of Rochester, 77 Hun, 35, 28 N. Y. Supp. 226, where a similar question was presented, Haight, J., said: [950] “This statute should receive a reasonable construction. The time, place, and circumstances should be given with reasonable accuracy, so as to enable the officers charged with the duty of investigating the circumstances to determine whether the claim is meritorious. We do not think this statute contemplates that a person injured should be required to give the exact time when it occurred, for this, in many cases, would be quite impossible. Neither do we think that the statute contemplates that he should be put to the expense of employing a surveyor to accurately locate the place where the accident occurred.” In view of all the circumstances disclosed by the evidence, we are of the opinion that the ruling of the trial judge to the effect that the notice was sufficient ought not to be disturbed. 3. We think the evidence presented a question of fact for the jury to determine whether the injuries which the plaintiff received caused traumatic synovitis. While there was a conflict relating to the question as to whether the condition in which she was weeks and months after the injury was attributable to the injuries which she received, or whether it arose by reason of her being afflicted with rheumatism, we think the question of fact was one proper to be determined by the jury, and was carefully presented to the jury by the trial judge, and that their verdict on that subject should be approved. 4. Prior to the accident, the plaintiff, a woman of about 33 years of age, was apparently in a healthy condition, following an occupation- in which she was able to earn, by her manual labor, wages. Assuming, as we must, that, according to the finding of the jury, the injuries which she received caused the suffering which she was called upon to endure by reason of the loss of the use of her knees, and causing them to be swollen, and her legs to be comparatively useless, after suffering from treatment at home and in hospital, and the necessary expense in procuring the same, and being subjected repeatedly to blisters and cauterizations, which have been found insufficient to work restoration to her of the usefulness of her limbs, leaving her in a condition that she has been obliged to Use crutches, and is incapable of standing upright to ascend stairs, or to stoop or to bend her knees, and compelling her to lose her employment and opportunity to earn wages, as was shown by the evidence, we are of the opinion that the court properly refused to grant a new trial on the ground that the damages were excessive. Vail v. Railway Co., 6 Misc. Rep. 20, 26 N. Y. Supp. 59; Morris v. Railroad Co., 73 Hun, 560, 26 N. Y. Supp. 342; Demond v. Railroad Co., 8 Misc. Rep. 610, 29 N. Y. Supp. 318; Fox v. Railroad Co., 7 Misc. Rep. 285, 27 N. Y. Supp. 895; Wilson v. Railroad Co., 8 Misc. Rep. 450, 28 N. Y. Supp. 781; Walsh v. Railroad Co., 78 Hun, 1, 28 N. Y. Supp. 1097; Stephens v. Knitting Co. (Sup.) 20 N. Y. Supp. 916; Gale v. Railroad Co., 13 Hun, 1; Scott v. Association, 74 Hun, 284, 26 N. Y. Supp. 690. Judgment and order affirmed, with costs. All concur.