(91 Hun, 9.)

#### ROACH v. CITY OF OGDENSBURG.

(Supreme Court, General Term, Third Department.

December 3, 1895.)

Municipal Corporations—Defective Streets—Question for Jury.

In an action -for injuries causing the death of plaintiff’s intestate, it appeared that, while intestate was driving along defendant’s street, his wagon wheel slipped into a depression caused by vehicles passing over a raised cross walk, and threw him out. Plaintiff gave evidence that the existence of the depression was known to the street commissioner-*113when the street was cleaned, 16 days before the accident. Defendant contended that the depression was not greater than many others in the city, and that, in consequence of the large amount of streets to be cared for, the street in question was in a reasonably good state of repair. *Held,*that the questions of negligence and contributory negligence were properly submitted to the jury.

Appeal from circuit court, St. Lawrence county.

Action by Catherine Roach, as administratrix, against the city of Ogdensburg, for personal injuries. From a judgment entered on a verdict for plaintiff, and from an order denying a motion for a new trial, made on the minutes, defendant appeals.

Affirmed.

For former report, see 30 N. Y. Supp. 450.

Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.

Louis Hasbrouck, for appellant.

Malby & Lucey (John M. Kellogg, of counsel), for respondent.

MAYHAM, P. J.

This action was prosecuted by the plaintiff against the defendant to recover for the alleged negligence of the defendant in the maintenance of a public street, in allowing it to be so far out of repair as to cause plaintiff’s intestate, while driving on such street, to be thrown from his wagon, and so injured as. to cause his death. The action is prosecuted by the mother of the intestate, as administratrix of his estate. The case discloses that intestate was 18 years of age, and engaged in driving a team drawing loads in the city of Ogdensburg, and, while passing over one of its principal streets, was thrown from his wagon upon the concrete roadbed, the wagon passing over some portion of his body, and so injured him that he soon thereafter died from such injury.

The principal contention on the part of the appellant is that there was a failure on the part of the plaintiff to establish, by proof, any negligence of the defendant which would justify a recovery against the city for the injury complained of. On the part of the plaintiff, it was shown that, at about the place where this injury occurred, Ford street was intersected by the track of a street railroad; that across said street, and also across the track of the railroad, a cross walk had been constructed by the defendant, raised several inches above the even grade of the street, and so graded on either side as to make passage over it easy; and that through said cross walk the railroad track had a depression of two or three inches; and that on one side of this cross walk there had been an excavation, or rut, formed by the wheels of vehicles passing over it, which made a depression below the surface of the concrete of from five to seven inches; and that into this depression the wheels of intestate’s wagon fell, which so jostled the wagon as to throw intestate from his seat, upon the roadbed. Evidence was offered by the plaintiff tending to prove that this depression in the surface of the street had been there, at least, from the 22d of April, until the 8th of the succeeding May, when the injury occurred, and that its existence was known to the street commissioner at the time of cleaning the street on the 22d of April; and no steps are shown to have been taken on the part of the defendant, or any of its agents, to repair the same; and there *114is some evidence tending to show that during that interval other persons driving on the street had driven into this depression, and a hack driver was thrown off his hack by reason of driving into the same. On the part of the defendant it was contended that this depression was not greater than many others in the city; and that, in consequence of the large amount of public streets to be cared for by the city authorities, the street was in a reasonably good state of repair; and that the defendant could not be held responsible for injuries growing out of the condition of the street shown to exist at this point.

These contested questions of fact were properly, we think, submitted to the jury by the trial judge. Whether the street at this point was in a reasonably safe condition, and, if unsafe, whether the city authorities had notice of its condition, or, by reason of its long continuance, were chargeable with notice, was a question properly submitted to the jury, and their verdict upon those questions cannot be disturbed on appeal. - It is true, as contended by the learned counsel for the defendant, that the burden of satisfying the jury of the existence of negligence on the part of the defendant rests with the plaintiff; and while, as claimed by the plaintiff, in every case there is always a preliminary question for the court, as to whether there is any evidence upon which the jury can properly find a ver■dict for the party producing it, and upon which the burden of proof .is imposed, yet, if there be any evidence of negligence, it is equally the duty of the court to submit the question to the jury for their determination. This has long been the well-established rule, and we do not think it has been disturbed or overruled by the case of Lane v. Town of Hancock, 142 N. Y. 510, 37 N. E. 473. In that case the court had under consideration the question of negligence as applied to á country road in a sparsely-settled community, on which there was but a small amount of public travel. In the case at bar the question arises on the principal thoroughfare of a large and populous city; •and in the recent case of Wood v. Town of G-ilboa (N. T. App.; not officially reported) 42 N. E. 544, the court seemed to have recognized a clear distinction between the streets of a populous city or village and a country road, in determining the question of negligence of a town or city.

We think the question of negligence in this case was properly submitted to the jury as a question of fact, and we see no errors in the rulings of the learned trial judge which call for a reversal of the judgment entered upon the verdict in this case.

Judgment must be affirmed, with costs. All concur.