#### McNISH v. VILLAGE OF PEEKSKILL.

(Supreme Court, General Term, Second Department.

December 27, 1895.)

1. Appeal—Sufficiency op Case.

Where a case on appeal from a judgment and an order denying a new trial does not contain the order or a certificate that all the evidence bearing on the questions sought to be reviewed is included in the case, only the questions presented by the exceptions taken on the trial will be considered.

2. Municipal Corporations—Defective" Streets.

One walking along a path on the side of a village street on a stormy night, who leaves the path, and, attempting to cross the street at an untrodden place, falls into a furrow in the street made that day by a contractor working for the city in preparing to build a sidewalk on the side of the street on which the path was located, cannot recover from the village for injuries sustained, where she knew that the street had been torn up. Pratt, J., dissenting.

Appeal from circuit court.

Action by Adela McNish against the village of Peekskill for personal injuries. From a judgment for plaintiff, and an order denying a new trial, defendant appeals.

Reversed.

Argued before BROWN, P. J., and DYKMAN and PRATT, JJ.

L. F. Crumb, for appellant.

Henry W. Bates, for respondent.

DYKMAN, J.

This is an appeal from a judgment in favor of the plaintiff entered upon the verdict of a jury against the defendant. There is also an appeal from an order denying a motion for a new trial upon the minutes of the court, but the case contains no order. Neither does it contain a certificate that all the evidence, or all bearing upon the questions sought to be reviewed, has been included in the case. Under such circumstances, we can only consider the questions presented by the exceptions taken upon the trial. Lewis v. Merritt, 42 Hun, 161; Porter v. Smith, 107 N. Y. 531, 14 N. E. 446; Murphy v. Board, 53 Hun, 171, 6 N. Y. Supp. 99. The omission to enter an order denying a motion upon the minutes of the court to set aside the verdict, and the failure to insert a certificate or stipulation that the case contains all the evidence, is equivalent to an admission that the facts are not to be reviewed.

The only exception requiring attention' is the exception to the motion made at the close of the plaintiff’s case to dismiss the complaint, on the ground that the plaintiff had made out no cause of action. It will be observed that the ground of the motion is not specifically stated, and there is some question respecting its sufficiency in that respect to raise the question intended to be presented *1023thereby. The rule of law upon the subject requires the defendant to specify the ground of his motion; and where a defendant moves to dismiss a complaint without specifying any ground, and the motion is denied, he cannot maintain his exception on appeal, provided the failure of proof could have been supported. Haines v. Railroad Co., 145 N. Y. 238, 39 N. E. 949. In this case the ground stated was that the plaintiff had made out no cause of action; and, although the statement is a general one, yet it refers to the insufficiency of the proof to charge the defendant with negligence. It is not like the case of a failure to prove a demand or a notice which might have been supplied if attention had been directed to the omission. We are therefore inclined to examine the case to determine whether the denial of the motion was erroneous.

The facts which had been developed upon the trial when the plaintiff rested her case were these: Hudson avenue is one of the outlying streets in the village of Peekskill. It leads east and west, with an ascending grade towards the east, and is crossed by Washington street and Ringold street, which are about 500 feet apart, the former being west of the latter. The first house on the south side of the avenue was Reardon’s, about 120 feet east of the latter street. The next house was that of Scribner, the mother of the plaintiff. There was a sidewalk on the south side of the avenue west of Reardon’s house, and the surface of the ground was in its natural condition. There was a path on the south side from Rear-don’s west to Washington street, “if,” as one of the witnesses said, “you could find it.” On the 1st day of May, 1895, a contractor with the village commenced to grade the avenue, and ran a furrow with a plow-along what was probably intended to be the north side of the sidewalk on the southerly side of the avenue, in the neighborhood of Reardon’s house.. The witnesses differed about the depth of the furrow, but it must have been, of course, less than 12 inches. The earth was left undisturbed south of that furrow. In the evening of the 1st day of May, 1895, the plaintiff, with her two daughters and a Mr. Fox, went to the house of her mother at about 8 o’clock in the evening. They walked up on the north side of the avenue, which was better than the south side. While at her mother’s house, there came a violent rain shower, accompanied with lightning and thunder; and, while the storm was yet prevailing,the plaintiff and her two daughters and Fox started out of the house, to go to her home. Instead of crossing the avenue and going west ón the north side, the same way they came, they started west on the south side of the avenue, along the path; and, after proceeding a short distance, the plaintiff turned to cross the street, and fell between two trees, into the furrow that had been made that morning, and fractured her kneepan.

Are these facts and circumstances sufficient to charge the defendant with negligence, and to prove the plaintiff’s freedom therefrom? In the administration of the law, negligence is the omission of duty; and, under well-settled principles, it is the duty of municipal corporations to exercise care and vigilance- to maintain the public streets *1024and avenues within their borders in a safe and suitable condition for public travel, and they must be proved guilty of a neglect of that duty before they can be rendered liable for injuries resulting from their condition. Ordinary care is all the law requires, and extraordinary diligence is not exacted. An essential element of negligence is knowledge of facts which rendered foresight possible, and the circumstances necessary to be known before the liability for the consequences of an act or omission will be imposed must be such as would lead a prudent man to apprehend danger. All are bound to foresee what experience will teach them. In a given case, action must be dictated by experience. ' Where there is no knowledge of facts which would lead to an apprehension of danger, there can be no imputation of foresight or blameworthiness, and these two ingredients are necessary to constitute negligence.

It now remains for us to apply the foregoing rules to the facts of this case. Here we have an avenue in a state or nature, with an unfrequented path on each side. The path on the north side was better than the one on the south side. It is witnin the discretion of the municipal authorities to make improvements in streets and avenues within their domain, or to omit them. In this case no sidewalk had been made or ordered on this avenue, and, for a failure to exercise the power to construct and regulate them, no civil action is maintainable. Mills v. City of Brooklyn, 32 N. Y. 489; Danaher v. City of Brooklyn (Sup.) 4 N. *Y.*Supp. 312; Harrigan v. City of Brooklyn (Sup.) 16 N. Y. Supp. 743. A municipal corporation may determine for itself the extent of the improvements it will make. In this case the authorities had made no plan for a sidewalk, and so had never invited the public to use it as such, except at their own risk.- There were neither excavations nor obstructions in the street in any place. A plow had been run along the south side of the avenue on the day of the accident, but the earth remained untouched and soft. Under such circumstances, it is not too much to say that no human foresight could have anticipated such an accident as befell the plaintiff. She did not fall by reason of any defect in the path over which she was walking. That was free from obstruction. It was a good way of its sort, and, as we have already seen, no civil liability arises from the failure of the municipality to provide a better kind. The plaintiff, therefore, has no legitimate right to complain of the inaction of the corporation, inasmuch as her injury did not result from any omission of duty which the law imposed upon it. No diligence or vigilance of the corporate authorities would have arrested the fall of the plaintiff, or averted her injury. If it be true that the avenue was not lighted, it is equally true that there was no legal obligation to light it. There was, however, an electric light at Washington street 150 feet from the place where the plaintiff fell.

Turning now to the conduct of the plaintiff, we find it not only careless, but heedless. She went out unnecessarily into the darkness of a fearful night; and instead of returning the way which she came, on the north side of the avenue, and which she knew to be safe, she started immediately west on the south side of the avenue, upon a *1025.narrow path. More than that, and as if to augment the perils of her environment, she turned aside, and started to pass over the ave.nue, where there was no crossing, and where she knew the street had been torn up that day. She unnecessarily left the path over which her companions had passed in safety, in advance of her, and turned upon an untrodden way, between bushes and trees, although it was :so dark she could not see where she was stepping, and could not see .at all. There was no instant from the time thé plaintiff left her. mother’s house on that unfortunate night that she was not in imminent and impending danger, and she encountered it all voluntarily .and unnecessarily. Her willful encounter of the perils not only contributed to the injury she sustained, but it was the entire cause of all .her woes.

The case of McCabe v. City of Buffalo (Sup.) 18 N. Y. Supp. 389, is quite analogous to this. It there appeared that the plaintiff, who was a woman, before dark passed a portion of a street which was undergoing repairs, and seeing that it was torn up, and that there was no pavement or cross walk, passed around the same upon planks temporarily laid down, and, returning in the dark, attempted to cross the unpavéd space, and was injured. It was there held that it was •a case in which the plaintiff was denied the right to presume that the •crossing outside of the planks was in a safe condition, because she had before observed what its condition was, and that she was guilty of •contributory negligence.

In no view of this case is the plaintiff entitled to a recovery, and the judgment must be reversed, and a new trial granted, with'costs to .abide the event.

BROWN, P. J., concurs. PBATT, J., dissents.