#### MICHELS v. CITY OF SYRACUSE.

(Supreme Court, General Term, Fourth Department.

December 26, 1895.)

1. Municipal Corporation—Defective Sidewalk—Evidence.

In an action for personal injuries caused by a defective sidewalk, the defendant put in proof to the effect that plaintiff’s injury was caused by an accumulation of ice and snow. The evidence of plaintiff’s witnesses tended to show that there was no ice or snow upon the walk at that place, and at least one witness who was present when the accident occurred testified that there was no snow or ice upon the walk at that place. Held, that the question was one of fact, and properly submitted to the jury.

*2.*Same—Notice to City.

In an action for personal injuries caused by a defective sidewalk, it was proper to admit the testimony of a witness that a few days before the accident he had called the attention of the city’s superintendent of public works to the condition of the walk, and the fact that he had seen five or six persons fall there, and that he told him if they fell in the same ratio until night some one would get killed or terribly injured.

Appeal from circuit court, Onondaga county.

Action by Anna M. Michels against the city of Syracuse for personal injuries. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial made on the minutes, defendant appeals.

Affirmed.

Argued before HARDIN, P. J., and MARTIN and MERWIN, JJ.

Charles E. Ide, for appellant.

Allis & Rogers and William Kennedy, for respondent.

*508PER CURIAM.

On November 25,1892, the plaintiff fell upon the sidewalk on the north side of East Fayette street in the city of Syracuse, and sustained an injury, to recover for which this action was brought. The action was based on the defendant’s negligence. In the latter part of October, 1892, the sidewalk, near the pla.ce where the plaintiff fell and was injured, had been relaid upon a different grade from the sidewalk connecting with it. The difference in the grade wras proved to have been from 4 to 10 inches. The plaintiff’s witnesses testified that it was from 6 to 10 inches, while the defendant’s that it was from 4 to 6. The walk was connected by a flag which was placed in a sloping position, one edge being level with the walk on the higher grade and the other being even with the walk on the lower grade. The surface of the slant from the higher to the lower grade was 27 inches. The plaintiff claimed that the defendant was negligent in permitting the walk to remain in that condition, and that by reason of such negligence her injury occurred. The defendant claimed that the cause of the plaintiff’s injury was an accumulation of ice upon the sidewalk, resulting from the rain and snow that had fallen and frozen upon the wTalk, and walks generally in that locality, and hence that it was not liable, or guilty of any negligence which caused the plaintiff’s injury.

The court, in submitting to the jury the question whether the defendant’s negligence caused the plaintiff’s injury, charged that if the snow or ice caused this accident, or in any way produced it, the plaintiff could not recover, and that to entitle the plaintiff to succeed, the accident must have been produced solely by the slope in the walk, and not by reason of sleet or snow that had accumulated or was upon it at that time. It further charged that if the snow or ice produced the plaintiff’s injury, or if the jury was unable to say that it resulted alone from the slope in the walk, then their verdict must be for the defendant, and that if it found that it was the snow and ice, either alone or in connection with the slope, that caused the plaintiff’s injury, its verdict must be for the defendant. It is not contended bjr the apnellant that the questions of the defendant’s negligence and the plaintiff’s freedom from contributory negligence were not, under the evidence, questions of fact, and properly submitted to the jury. Its contention is that the evidence was insufficient to show that the plaintiff’s injury was the result of the defendant’s negligence, and hence the plaintiff was not entitled to recover. We think this contention cannot be sustained. The evidence introduced by the plaintiff tended to show that the injury resulted solely from the slope in the sidewalk, and that it was not occasioned by ice or snow. At least one witness who was present when the accident occurred testified that there was no snow or ice upon the walk at that place, and that it was not slippery from the presence of either. After carefully reading the evidence contained in the record before us, we are satisfied that the qustion whether the plaintiff’s injury resulted from the slope in the sidewalk was one of fact, and properly submitted to the jury.

The facts in this case render it clearly distinguishable from the *509case of Taylor v. City of Yonkers, 105 N. Y. 202, 11 N. E. 642, and other similar cases cited by the appellant. In those cases there was no evidence that permitted the jury to infer that the accident was occasioned from the slope or obstruction in the walk, or that the existence of such slope or obstruction concurred in causing the injury complained of. Upon the evidence in those cases it was just as probable that the injury was occasioned by a recent accumulation of ice, as from the slope or obstruction in the walk. Under • those circumstances the court held that the plaintiff could not recover. In the case at bar the plaintiff’s evidence tended to show that there was no ice or snow which contributed to the plaintiff’s injury, and the court charged that the plaintiff could not recover unless the injury resulted solely from the slope in the walk. This was an instruction to the effect that the plaintiff could not recover unless the jury found that the testimony of the witnesses who testified that there was no snow or ice upon the walk at the place where the injury occurred was entitled to belief. There was sufficient evidence to justify the jury in finding that the injury resulted from the slope in the walk, and from that alone. As we had occasion to examine a similar question in Goff v. Village of Little Falls (Sup.) 20 N. Y. Supp. 175, and there cited the authorities bearing upon the question, we deem it unnecessary to further refer to them at this time. Thus, it follows that the judgment should not be disturbed on the ground that the evidence was insufficient to justify the jury in finding that the accident resulted solely from the negligence of the defendant in permitting the existence of this slope in the walk.

We have carefully examined the portions of the charge to which the plaintiff excepted, and to which our attention has been called by the appellant in its brief, but we have found no error that would justify an interference with the judgment, or that requires special consideration. When the whole charge is considered, it is manifest that the case was presented to the jury upon a theory that was as favorable to the defendant as it had a right to expect. If there were any errors in the charge, they were in favor of the defendant, and of those it cannot justly complain.

On the trial the plaintiff was permitted to prove by the witness-Thompson that, a day or two before Thanksgiving, which was before the plaintiff’s injury, he informed the defendant’s superintendent of public works that he had seen five or six persons fall upon that inclined stone, and stated to him that if they fell in the same ratio until night some one would get killed or terribly injured. This was objected to, and subsequently the defendant moved to strike it out upon the ground that it was in evidence that there was a changed condition on the day of the accident. The motion was denied, and the appellant excepted. We think the evidence was admissible, at least so far as necessary to show that the defendant’s superintendent of public works had notice of the slope in the sidewalk prior to the plaintiff’s injury; and that the appellant’s excep- . tion was not well taken.

Judgment and order affirmed, with, costs.