#### Ellen Pomfrey, Resp’t *v.*The Village of Saratoga Springs, Appl’t.1

*(Court of Appeals,*

*Filed March*1, 1887.)

1. MUNICIPAL CORPORATIONS — NEGLIGENCE — LIABILITY POE CONDITION OF ' STREETS.

By its charter (Laws 1866, ch. 220) the village of Saratoga Springs is constituted a separate road district, exempt from the superintendence and care of the commissioners of highways of the town of Saratoga Springs, and the trustees are constituted and declared to be the commissioners of the village. They are authorized to appoint a superintendent, who is to have the care and supervision of the streets and sidewalks of the village, subject to their general control and direction. They are empowered and it is made their duty, to establish such ordinances, by-laws and regulations as they may think proper and reasonable; among other things to establish the grade of the streets and sidewalks, and the cleaning of streets and sidewalks as often as may be necessary; and ample power is conferred upon the village and its trustees to raise money for the purpose of discharging the duties and obligations thus imposed upon it in reference to its streets and sidewalks.

*803*Held,*That under such a charter it was the duty of the village to keep its streets in a reasonably safe and proper condition for public use, and that for neglect of such duty it was liable for damages to persons, without fault on their part, receiving injuries upon its streets.

2. Same — The rule equally applicable to cities and villages.

*Held,*That the rule of municipal responsibility as to streets and sidewalks is equally applicable to incorporated villages as to cities, and .that the same principles which impose liability upon one class of corporations impose it on the other.

3. Same — Wiiat Notice Necessary to fix liability — Actual construction.

If the municipal authorities have actual notice of a dangerous defect in a street, then it is their duty without unreasonable delay, to repair it. They do not fill the measure of their responsibility, however, by acting simply when they have actual notice, but they owe to the public the duty of active vigilance; and when a street or sidewalk has been out of repair for any considerable length of time, so that by reasonable diligence they could have notice of the defect, such notice may be imputed to them.

4. Same — Streets — Dedication and acceptance presumed erom user.

*Held,*That the fact that a street had been open for its whole width 40 years, and used extensively as such by the public; that the sidewalk had been laid out and used during all of that time, that water-mains had been laid through it, and curbs placed along the sidewalks at the expense of the village, and that the village hadcassumed jurisdiction over it, was sufficient evidence to sustain a finding by the jury that the street for its whole width had been dedicated to and accepted by, the public, and that it was legally and lawfully one of the streets of the village.

5. Same — Interpretation oe language oe statute — Streets includes sidewalks.

By the village charter it was made the duty of the superintendent in the month of April in each year, to report in writing to the board of trustees the general condition of the streets, etc., with estimates of-the probable expense to put them in good repair; and ten days prior to each annual village election, to report in writing to the board of trustees the condition thereof with the probable amount necessary to keep them all in good repair during the ensuing year. AVhenever any repairs shall be necessary in any • public street, the superintendent was charged with the duty of attending thereto, and when there were no funds in his hands to make such repairs, to report the fact to the board of trustees, with his opinion as to the amount necessary for such purpose, to the end that means might be provided and drafts drawn upon the particular fund belonging to the highway department to make such expenses. It was further provided that for the purpose of “ providing the means of sustaining the several departments, and defraying the expenses of the coiporation, the board of trustees are authorized to levy and collect an annual tax for the purpose and in the amounts as follows,” Subd. 1, not exceeding seven thousand five hundred dollars for the support of roads, bridges, culverts, streets, lanes and alleys within the village. *Held,*That the word “ streets ” should be held to mean the entire space between the outer lines of the streets, and that the money authorized to be raised under the provisions recited could be used as well for the repair of the sidewalks as of the road-bed in the centre of the streets.

■6. Same — Presentation oe claim — When not required — Laws 1875, ch-517.

*Held,*That an objection to a claim by the plaintiffs for damages for injuries received by improper condition of the defendant’s streets, was not such a one as it was necessary to present to the auditors of the village under Laws 1S75, ch. 517.

7. Same — Evidence — What not material error.

_ *Held,*that in an action for damages for injuries so received, the admission in evidence of an ordinance of the village imposing penalties on persons *804■who should neglect to keep the sidewalks in front of their lots and buildings, free and clear from incumbrances was not such an error as was harmful to the defendant.

8. EvideNoe — Competency op.

*Held,*That a witness having been called to testify as to the condition of. the sidewalks, her testimony that she fell at the place in question herself was competent.

9. Negligence — What not, pee se.

The accident complained of having happened in passing over a part of the sidewalk on which there was an embankment of snow and ice. *Held,*that-'it was not under the circumstances negligence *per se*for the plaintiff to undertake to pass over the embankment.

Appeal from a judgment of tbe supreme court, general term,, third department, affirming a judgment recovered in an action, brought by plaintiff to recover of defendant damages for a fall on a sidewalk. Yerdictwas for $8,000.

*Charles S. Lester,*for *appl’t; L. B. Pike*and *Chas. M. Davidson,*for resp’t.

1

 Affirming 31 Hun, 007, *mem.*

Earl, J.

Tbe plaintiff commenced tbis action to recover damages for injuries received by ber from falling upon one of tbe sidewalks in tbe village of Saratoga Springs, on tbe ninth day of January, 1888. At that time,, snow and ice had accumulated upon the sidewalk on the southerly side of Lake avenue, opposite the premises of one Andrews, until the embankment was about, three feet thick above tbe surface of tbe ground, and two and oue-balf feet thick above tbe snow upon tbe sidewalk easterly and westerly of the premises mentioned. While she was passing along the sidewalk over this embankment sbe slipped down, and received the serious injuries of which sbe complains. Tbis snow and ice had fallen from time to time from the roof of a barn, standing near the sidewalk, and had been there for at least two weeks.

Under its charter (chapter 220, Laws 1866) the village of Saratoga Springs is constituted a separate road-district, exempt from the superintendence and care of the commissioners of highways of the town of Saratoga Springs, and the trustees are constituted and declared to be tbe commissioners of the village. They are authorized to appoint a superintendent, who is to have the care and supervision of the streets and sidewalks of the village, subject to their general control and direction. They are-empowered, and it is made their duty, to establish such ordinances, by-laws, and regulations as they may think proper and reasonable -, among other things to establish the grade of the streets and sidewalks,- to provide for and regulate the paving, repairing, and improving streets and sidewalks, and the cleaning of streets and sidewalks as often as may be necessary ; and ample power is conferred upon tbe village and its trustees to raise money for tbe purpose of discharging tbe duties and obligations thus imposed upon, it in reference to its streets and sidewalks.

*805That under sucb a charter, it was tbe duty of the defendant to keep its streets and sidewalks in a reasonably safe and proper condition for public use, and that for neglect of such duty it was liable for damages to persons, without fault on their part receiving injuries upon the streets, has been settled by many decisions in this state, and is no longer open to question. *Conrad*v. *Village of Ithaca,*16 N. Y., 158; *Requa*v. *City of Rochester,*45 N. Y., 129;*Hines*v. *City of Lockport,*50 N. Y., 236; *Todd*v. *City of Troy,*61 N. Y., 506; *Evans*v. *City of Utica,*69 N.Y., 166; *Weed*v. *Ballston Spa,*76 N. Y., 329; *Saulsbury*v. *City of Ithaca,*94 N. Y., 27*; Dubois*v. *City of Kingston,*102 N. Y., 219, 1 N. Y. State R. 350. The rule of municipal responsibility as to streets and sidewalks is equally applicable to incorporated villages and to cities, and the same principles which impose liability upon the one class of corporations impose it upon the other. If the municipal authorities have actual notice of a dangerous defect in a street, then it is their duty, without unreasonable delay, to repair it. They do not fill the measure of their responsibility, however, by acting simply when they have actual notice, but they owe to the public the duty of active vigilance *;*and when a street or sidewalk has been out of repair for any considerable length of time, so that by reasonable diligence they could have notice of the defect, such notice may be imputed to them. So, in this case,t if all the other conditions existed for imposing liability upon the defendant, it is not claimed that the facts of the case were not such that the jury could find that the ■defendant had, or ought to have had, notice of the dangerous condition of this sidewalk.

But the defendant seeks to escape liability upon various grounds which will be separately noticed.

1. It is claimed that the place where the plaintiff was injured, ¿although used by the public, was not in fact a public street or sidewalk over which the defendant had jurisdiction. But it is undisputed that this street had been open to its full width for ¿about 40 years ; that it was one of the principal streets of the village, extensively used by the public ; that the sidewalk had "been laid out and used during all of that time ; that water-mains had been laid through the *street;*that the village had assumed jurisdiction over it; and that curb-stones had been placed along the sidewalks at the expense of the village. We think that there was abundant evidence from which the jury •could properly find that this street, for its whole width, had been dedicated to and accepted by the public, and that it was legally and lawfully one of the streets of the village. *Cook*v. *Harris,*61 N. Y., 448*; People*v. *Loehfelm,*102 N. Y., 1.

2. It appears sufficiently that the defendant either had the means to clear this sidewalk of the accumulation of ice and *806snow, or tbe ability to raise the means. By section 38 of the-village charter it is made the duty of the village superintendent, in the month of April of each year, to report in writing to the board of trustees the general condition of “the streets, bridges, culverts, sidewalks, lanes, and alleys, with estimates of. the probable expense 'to put them in good repair. He shall also, within 10 days prior to each annual village election, report in writing to the board of trustees the condition of the streets, bridges, culverts, sidewalks, lanes, and alleys, with the probable amount necessary to keep them all in good order during the coming year.” Section 39 provides that whenever “ any repairs shall be necessary on any public street, bridge, culvert, sidewalk, lane, or alley in said village, the village superintendent, shall attend to such repairs ; and, when there are no funds in. his hands to make such repairs, he shall .report the fact to the-board of trustees, with his opinion as to the amount necessary for such purpose, to the end that the means may be provided, and drafts drawn upon the particular fund belonging to the-highway department, to make such expenses. He shall be subject to the same direction and control of the commissioners of highways of the village in the care and supervision of the public streets, bridges, culverts, sidewalks, lanes, and alleys therein, and to the same penalties for neglect of duty, as the-overseers of highways of the several road-districts in the town of Saratoga Springs are to the commissioners of highways of said town. He shall be personally responsible to the public for neglect of duty to the same extent as the commissioners of said village.” Section 54 provides that, for the purpose of “ providing the means of sustaining the several departments, and defraying the expenses of the corporation, the board of trustees are-authorized to levy and collect an annual tax in amounts and for the purposes as follows : Subdivision 1. Not exceeding-seven thousand five hundred dollars for the support of roads, bridges, culverts, streets, lanes, and alleys within the village.”

The claim on the part of the defendant is, that, because sidewalks are not mentioned in this last section, therefore there-was no power in the trustees to raise any money for the repair of sidewalks. But in various other parts of the charter sidewalks are specially mentioned, and they are placed under the care and supervision of the trustees ; and the superintendent, under their direction, is bound to attend to and make the repairs upon them, as well as the streets. The word “ streets ” is used here in its broad sense, and was intended to include, not only the roadway for teams, but the sidewalks for pedestrians. *In re Burmeister,*76 N. Y., 174. While it is made the-duty of the village to keep the sidewalks in repair, it would be-quite extraordinary if there were no provision in the charter by which it could procure fund's for the purpose of discharging-*807that duty. We think,therefore, that the word “streets” should be held to mean the entire space between the outer lines of the streets, including the sidewalks, and that the money authorized to be raised under that section could be used as well for the repair of the sid.ewalks as of the road-bed in the center of the streets. The only evidence given on the trial to prove that the village had no funds to repair this sidewalk was the evidence of the village superintendent, who testified that he did not have any money in his hands for that purpose. But there was no proof that there was not sufficient funds in the treasury of the village, which, under the charter, could have been placed in his hands, and used for that purpose, if he had applied for it.

8. It is further objected that the plaintiff’s claim was never presented to or acted upon by the auditors of the village, as required by chapter 517 of the Laws of 1875. A sufficient answer to this objection is that it was in no way made upon the trial, and is not presented to us by any proper exception. But it may, however, be further said that the plaintiff’s claim is not one of those which is required to be audited under that act. The claims there referred to are clearly claims for expenditures made on behalf of the village, or for services rendered for or goods or materials furnished to the village; and this claim, therefore required no audit.

'4. Upon the trial the plaintiff offered in evidence one of the ordinances of the village which imposed penalties upon persons who should throw any snow or ice from roofs upon sidewalks, and upon the owners and occupants of lots or buildings who should neglect to keep the sidewalks in front of their lots and buildings free and clear of snow and ice and other incumbrances. The defendant objected, and the objection was overruled, and the evidence admitted. In this we perceive no error harmful to the defendant. It was not held liable for failure to make proper ordinances, or to enforce the ordinance proved. So far as it had any effect whatever, it would seem to have been beneficial to the defendant, as it showed that it had so far discharged its duty by passing proper ordinances for keeping the sidewalks frée and clear of ice and snow. It had no material bearing in favor of the plaintiff, except to show that the trustees were aware of the importance of removing such obstructions from the sidewalks of the village, and of their dangerous character.

5. It is also claimed that there was error in allowing one of the witnesses to testify, against the objection of the defendant, and that she fell down once at the same place where the plaintiff was injured. She was called by the plaintiff to testify to the condition of the walk, and testified that she recollected its condition ; that the snow was packed very hard from falling from the *808roof of tbe bam ; that the embankment at each end was slanting and that a person had to be very careful or fall; that she knew that to be a fact, and spoke from experience ; and then she was permitted to say that she fell there once herself. That evidence was given apparently to show how she came to know the condition of the walk at that place. But such evidence has been held to be competent. *Quinlan*v. *City of*Utica, 11 Hun. 217; S. C. affirmed, 74 N. Y., 603.

6. The evidence tended to show that this embankment of snow and ice was perfectly visible ; that the plaintiff must have seen it as she passed over it; and that there was a light covering of recent snow over the ice. The defendant requested the court to charge the jury “ that if the obstruction was visible and apparent to any passer-by, the plaintiff was guilty of negligence in attempting to. cross it; ” also that, “ if the defect complained of was such as would be seen by an ordinary person passing along the street, it was negligence for the plaintiff to attempt to pass over the defect, but she'should have gone around the samé.” The court declined to charge as requested, and the defendant’s counsel excepted. The charge of the judge sufficiently laid down the rule of law as to plaintiff’s contributory negligence, and it would not have been proper for the judge to charge, as matter of law, that it was negligence for the plaintiff, under the circumstances disclosed in this case, to attempt to pass over the embankment. *Evans*v. *City of*Utica, *supra*; *Brusso*v. *City of*Buffalo, 90 N. Y., 679; *McGuire*v. Spence, 91 N. Y., 303; *Bullock*v. Mayor, *etc.,*99 N. Y., 654.

We have now noticed all the objections to plaintiff’s recovery, which were brought to our attention upon the argument of this case by the learned counsel for the appellant, and we do not think any of them furnish a sufficient reason for the reversal of the judgment. We may, however, say that the responsibility cast upon cities and-villages for injuries caused by slipping down upon streets and sidewalks in consequence of snow and ice is a very serious one. In this climate, where, during several months of the year, snow falls in large quantities, and ice is from time to time created, it is quite impossible, particularly in villages, at all times to keep the streets and sidewalks in a safe condition. In this village it appears that there were 75 miles of sidewalks, and but one superintendent, having charge of all the streets and sidewalks. It is manifestly difficult, under such circumstances for such a village to keep its sidewalks at all times clear of snow and ice ; and the proof should be very satisfactory, showing clear neglect of duty, before liability for injuries caused by snow an ice should be imposed, The evidence from which such notice could be imputed to the defendant as would charge it with negligence in not removing this embankment of snow and ice was very meager and slight, but we can*809not say that ú wn>-. h<><. sufficient for the consideration of the jury. Indeed, it was ■'.<*•! claimed at the trial or on the argument before us ib:u. it vas not. Actions of this nature are becoming quite numerous, and they may well cause some alarm to those who bear the burdens of village taxation. But they must rely for their protection against unjust accident claims on the justice and sound sense of jurors, and in the power which the courts below possess to deal with verdicts which are excessive in amount, or against the weight of evidence.

We therefore reach the conclusion that the judgment should be affirmed, with costs.

All concur, except Peckham, J. not sitting.