Shook v. City of Cohoes

• Decision Date: 10 February 1888
• Citation: 15 N.E. 531,108 N.Y. 648
• Parties: SHOOK v. CITY OF COHOES.
• Court: New York Court of Appeals Court of Appeals

108 N.Y. 648

15 N.E. 531

SHOOK

v.CITY OF COHOES.¹

Court of Appeals of New York.

February 10, 1888.

Appeal from general term, supreme court, Third department.

Action by Catharine Shook against city of Cohoes for damages for injuries occasioned by a fall in attempting to pass over an obstruction on the sidewalk. Judgment for plaintiff, and defendant appeals.

P. D. Niver, for appellant.

R. J. House, (J. H. Clute, of counsel,) for respondent.

FARL, J.

Whether the plaintiff was guilty of negligence contributing to the accident was a question of fact for the jury. The trial judge could not properly rule, as matter of law, that she was guilty of culpable imprudence in attempting to pass over the obstructions upon the sidewalk, although they were known to her. Pomfrey v. Village, 104 N. Y. 459, 11 N. E. Rep. 43. Whether she could pass over them in the exercise of proper care, or whether she was bound to go around them into the muddy street, were questions of fact for the jury. The earth was thrown upon the sidewalk by an adjoining owner who was engaged in building a trench and post holes for a fence upon the line of his lot. The evidence on the part of the plaintiff tended to show that this obstruction upon the sidewalk had existed for about 10 days, but on the part of the defendant there was evidence tending to show that the trench and post holes were dug, and the earth thrown out upon the sidewalk, on Friday and Saturday prior to the Sunday morning upon which the accident happened, and that the work was finished on Saturday afternoon. Whether, upon the whole evidence, the obstruction had existed for such a length of time that the defendant was guilty of negligence, and in fault for not taking notice of it and removing it, was also a question of fact for the jury. Counsel for the defendant requested the court to charge as follows: ‘If the jury believe that the dirt was all thrown upon the sidewalk upon the Friday and Saturday before the accident, which occurred on Sunday, then the city is not guilty of negligence.’ The court refused to charge this request, but did charge that it was for the jury to determine whether reasonable time had elapsed in which notice should be taken. To this refusal defendant's counsel excepted. This exception presents no error. It must be assumed that this earth was wrongfully placed upon the sidewalk. It is true that, if there was any necessity for placing it there temporarily, in order to enable the adjoining...