Morning journal and courier., 1885-12-30
Tho Law of sidewalks.


 every duty resting on city or town in rela- tion to the proper maintenance of highway applies of course to the sidewalk. It may be stated as general rule of law that municipal corporations are bound to maintain in a proper condition, to repair whenever neces- sary, and keep constantly safe and free from incumbrances, the various sidewalks under their control. Where there is an obligation there is right to demand its fulfllment or damages for an injury sustained. Conse quently it is general rule of law that muni- for all injuries ocSssionsd by their negligence to keep in proper condition the sidewalks under their charge. The ground of liability is negligence to fulfill duty; but before the municipality can be called to account in damages it must be shown that some notice, actual or constructive, was had by the city or town. Actual knowledge of the improper state of the street is not required.
 Actual notice to the municipal legislative body would often be impracticable, and this is not required. Notice to an agent or sery- ant of the municipality is notice to the muni- cipality itself. Thus, notice to policeman has been held sufficient notice. In Todd vs.
 
 says: ''It is the duty of the municipal author ities to exercise an active vigilance over the streets; to see that they are kept in reason ably safe condition for public travel. They cannot fold their arms and shut their eyes and say they have no notice. After a street has been out of repair so that the de- feet has become known and notorious to those travelling the street and there has been full . opportunity for the municipality, through its agents charged with the duty, to learn of it's existence and repair it, the law imputes to it notice and charges it with negligence" What length of time must elapse after the coming into existence of the defect before the author ities are chargeable with notice has never been decided. The tenor of the cases on this point is if there has been opportunity to discover the defect and the defect remains unremedied negligence may be presumed.
 Damages are frequently occasioned by ob- stacles or membranes on the sidewalk These obstacles or membranes may have been produced by third parties, or they may be the natural consequences of the negligence of the municipal authorities. In the latter case there can be no question as to who must bear the liability. In the former the law is that the municipality must keep its sidewalks safe, and no matter who causes the defect, once it has notice of the fact, or is charge ble with constructive notice of it, it is bound to remedy it. Of course, the wrong-doer is also liable, and might be sued by the injured
  dangerously out of repair, is allowed to over hang a sidewalk; or where contractor makes an excavation and does not fence it, a nuisance is created on the highway and the authorities neglect to remove it; or an ip- cumbrance placed by third parties is allowed to remain upon the sidewalk
 It may be stated, al 8 general rule, that where ice snow, arising from natural causes, accumulates on a sidewalk and To- mains there long enough to charge the muni- cipality with notice, constructive or actual, the city, town or village as the case may be, is answersble in damages fer any injuries sustained by their neglect to remove the ''obstacles" or F'incumbrance" from the side walk This liability is imposed primarily on the authorities having charge over the streets, and they cannot by any means divest themselves of it. A contract with third par ties to repair the streets and put them in order will not excuse them. And municipal ordinance imposing ugon the abutting owner or tenant the duty of removing ice and snow does not divest the city of any liability, or impose upon the abutting owner or tenant any responsibility other than to answer the penalty imposed by the ordinance. If, how ever the negligence of the abutting tenant or owner is the real cause of the accumulation, as, for instance, if he has allowed the side walk to be encumbered by ice or snow falling from his overhanging roof, or formed by a defect in his leader or drain, he is also an swerable in damages.
 The ground of liability of the city, town or village being negligence, the question of contributory negligence necessarily arises. As broad fundamental rule, it may be said that every passer-by on public highway has right to presume that the highway is in a safe condition, and he is not obliged to be con- stantly on his guard. In Davenport vs. Ruckman, the New York Court of Appeals says "A person may walk or drive in the darkness of night, relying upon the belief that the corporation has performed it's duty, and that the street or walk is in a safe condition. The streets are for everybody" In this case it was sought to charge plaintiff with con- tributory negligence in going out upon the street unaccempanied, she being infrm and of defective vision.
 There is, however, class of acci- dents to passers-by for which, in many cases, not the municipal author ities, but the abutting owner or ten ant is liable at law, such as accidents arising from travellers falling into unfenced areaways, effectively constructed coal holes, and where injuries are occasioned by objects falling from overhanging roofs of neighbor ing buildings, or from the falling of insecure signs overhanging the sidewalk. Overhang- ing signs and defective coal holes are held to be nuisanoes per se and those who profit by their use create them are bound to exercise a constant supervision lest their invasion of the highway occasion injury.
 People walking along the sidewalk, carry ing packages or twirling canes, or negligent ly handling their umbrellas, must answer in damages for injuries caused by the neglect to