T 
 
 , ' "
 
 THE LIBRARY 
 
 OF 
 
 THE UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW
 
 L.a I,
 
 OF THE 
 
 LAW AND PRACTICE 
 
 IN ACTIONS AGAINST 
 
 MUNICIPAL CORPORATIONS 
 
 FOR 
 
 NEGLIGENCE 
 
 IN THE CAKE OF HIGHWAYS. 
 
 BY 
 
 WILLIAM W. MORRILL, 
 
 AUTHOR OF "COMPETENCY AND PRTVTIiEGE OF WITNESSES." 
 
 NEW YORK: 
 
 S. S. PELOUBET, 
 
 LAW PUBLISHER AND BOOKSELLER, 
 
 80 N ASS AT STREET. 
 1887.
 
 COPYRIGHT, 
 BY W. W. MOEBILL, 
 
 1887.
 
 PREFACE. 
 
 Actions against municipal corporations for injuries 
 arising upon highways are, it is generally admitted, 
 unduly numerous. To account therefor, some persons 
 argue an unseemly readiness to make cities and 
 villages suffer for the misfortunes of travellers ; others 
 insist that the corporations are quite too forgetful of 
 their duty toward those who use their streets. 
 Probably both opinions are correct. 
 
 Irrespective of merit, such actions abound and are 
 to be prosecuted and defended. If they do not con- 
 stitute a separate title in the law, or deserve 
 consideration in a separate treatise, there still may 
 be room for a hand-book of ready reference to 
 matters likely to arise during their preparation and 
 trial. .A desire to provide something of that sort is 
 the motive of this book. 
 
 The plan of treatment contemplated at the outset 
 is rather rashly made public in the introduction ; it 
 may promise somewhat too much or too little ; still 
 it is not believed that any striking departure has 
 
 [iii.] 
 
 ^QE^CIE- 1
 
 j v Preface. 
 
 been made from the scheme there outlined. To what 
 is there stated may be added, that since the subject 
 under consideration is only a branch of the general 
 subject of negligence, it has been found necessary 
 to consider many topics common to that whole subject, 
 and useful to draw illustrations from the whole field 
 of negligence cases. 
 
 Finally, it may be stated, that while the book is 
 primarily, to use the language of the almanac-makers, 
 "calculated for the longitude of" New York, yet the 
 statutes and decisions of other States are constantly 
 cited and considered ; and the intention has been 
 to make its application general, so far as may be, 
 without going into all the technical details peculiar 
 to each jurisdiction. 
 
 W. W. M. 
 
 Trot, N. Y., 
 
 August 15, 1887.
 
 TABLE OF CONTENTS. 
 
 PAET I. 
 LAW. 
 
 CHAPTER I. 
 
 Introductory 
 
 1. Scope and limitations 
 
 2. Sources of danger to travellers . 
 
 3. Injuries without remedy 
 
 Page 
 
 1-8 
 
 1 
 2 
 
 CHAPTER II. 
 
 9-24 
 Who may Sue 
 
 A. Person Directly Injured 
 
 l.Rule 10 o 
 
 2 Abatement 
 
 „ „ 10-11 
 
 B. Husband 
 
 1. Rule 
 
 2. Abatement. Revival 
 
 3. Death of wife 
 
 ^ t, •••• U- 12 
 
 C. Parent 
 
 1. Rule U 
 
 in 
 
 2. Adopted chdd 
 
 3. Child's separate action 
 
 _ ,, .. 12 
 
 D. Master 
 
 [v]
 
 vi Contents. 
 
 Page 
 
 E. Injuries Resulting in Death 12-24 
 
 1. Generally 12 
 
 2. Outside New York 13 
 
 F. Injuries Resulting in Death. New York 14-24: 
 
 1. Act of 1847 14 
 
 2. Amendment of 1849 15 
 
 3. Amendment of 1870 16 
 
 A. Code Civ. Pro 16 
 
 5. Relation of decedent to beneficiary 18 
 
 6. Existence of widow or next of kin 19 
 
 7. Fact of damage 19 
 
 8. Abatement ' 19 
 
 9. Extra-territorial effect 19 
 
 10. Common-law right of husband or parent. . . . .. 20 
 
 11. Bar by act of parent 23 
 
 12. Bar by act of decedent 23 
 
 13. Joinder of actions 24 
 
 CHAPTER III. 
 
 Grounds of Liability. Whom to Sue 25-38 
 
 A. Grounds of Liability 25-34 
 
 First. Nuisance 26-33 
 
 1. Rule 26 
 
 2. Creator out of possession 26 
 
 3. Maintainer of nuisance 26 
 
 4. Knowledge 27 
 
 5. Ignorance as an excuse 28 
 
 6. Non-user as an excuse 29 
 
 7. License, generally 30 
 
 8. Effect of license 30 
 
 9. Degree of care under license 32 
 
 Second. Negligence 33-34 
 
 10. Negligent act 33 
 
 11. Neglect of duty 34 
 
 B. Whom to Sue 34-38 
 
 1. Principal 34 
 
 2. Owner for default of contractor 34
 
 Contents. "ni 
 
 Page 
 
 3. Officers 35 
 
 4. Agents and servants 
 
 5. Contractors 3 " 
 
 6. Abutting owners 3 ' 
 
 7. Concurrent liability ^7 
 
 CHAPTER IV. 
 
 Highways, How Established 39-60 
 
 By Statutory Proceeding 40-41 
 
 B. By Prescription 41-44 
 
 1. Introductory ** 
 
 2. in New York 41 
 
 3. In other States 43 
 
 C. By Dedication 44-59 
 
 1. Introductory 44 
 
 2. Dedication defined 45 
 
 3. Intent must be proven 45 
 
 4. Manner of proof 46 
 
 5. Intent shown by acts 46 
 
 6. Conveyance by map, binding on parties 46 
 
 7. Contra, as to the public 47 
 
 8. Right of way 47 
 
 9. Map, by whom made 48 
 
 10. Actual map 49 
 
 11. Inference from user 49 
 
 12. Revocation 49 
 
 13. Acceptance, generally 50 
 
 14. How proven 60 
 
 15. Acts to prove 51 
 
 16. User 52 
 
 17. Adjudications as to user 52 
 
 18. Statutory acceptance by limitation 56 
 
 19. Leading cases 57 
 
 20. Miscellaneous cases 59
 
 viii Contents. 
 
 Page 
 CHAPTER V. 
 
 General Liability of Cities 61-G3 
 
 1. Introductory 61 
 
 2. Rule 61 
 
 3. Occasions of liability 62 
 
 4. Subjects suggested 63 
 
 CHAPTER VI. 
 
 Who to be Protected, and Where 64-71 
 
 A. Who to be Protected 64-65 
 
 1. New York rule 64 
 
 2. In some States, travellers only 65 
 
 B. The Locus in Quo 66-71 
 
 1. Introductory 66 
 
 2. Highway withia limits 66 
 
 3. Place treated as street 66 
 
 4. Right to whole street 67 
 
 5. Cross-walk 67 
 
 6. Side-walk 68 
 
 7. Access from private property 69 
 
 8. Bridge and approaches 69 
 
 9. Common path 70 
 
 10. Apparent walk 70 
 
 11. Place off street 70 
 
 CHAPTER VII. 
 
 Liability, how Conferred 72-81 
 
 1. General rule. Charter conferring power 72 
 
 2. Liability dependent on charter 73 
 
 3. Charters in New York 74 
 
 4. Corporations exempt by charter 74 
 
 5. Liability based on agreement 77 
 
 6. Power implies duty 79
 
 Contents. 1X 
 
 Page 
 
 79 
 
 7. Theory of agency 
 
 8. Liability dependent on funds 
 
 CHAPTER VIII. 
 
 82-91 
 Public and Corporate Functions 
 
 82 
 
 1. Dual powers 
 
 2. Care of streets a corporate duty 
 
 84 
 
 3. Discretionary acts 
 
 on 
 
 4. Negligent plan 
 
 CO 
 
 5. Ministerial acta 
 
 6. Care of excavations, &c 
 
 7. (2 ( " / *' i - col T orat i° ns 
 
 CHAPTER IX. 
 
 For Whose Acts Liable 92-10o 
 
 A. Agents and servants "" 
 
 1. In general 92 
 
 2. Ultra vires 
 
 B. Independent Officers and Departments 94 
 
 1. When city not liable 94 
 
 2. When city liable 96 
 
 3. Respondeat superior 97 
 
 C. Independent Contractors 98 
 
 1. Work not dangerous 98 
 
 2. Same. Supervision of officer 
 
 3. Work dangerous 99 
 
 4. Rules subject to liability for care of streets 100 
 
 D. Licensees 1"- 
 
 1. License lawful 102 
 
 2. Injury by mode of exercise 102 
 
 3. License for dangerous thing 103 
 
 4. Subject to duty to care for streets 103 
 
 E. Other Persons 104 
 
 1. Depends on notice 101 
 
 2. Acceptance by city . 105
 
 Contents. 
 
 CHAPTER X. 
 
 Proximate Cause 106-110 
 
 1. Introductory 106 
 
 2. Two proximate causes 106 
 
 3. Application to city -negligence cases 106 
 
 4. Runaway horses 108 
 
 CHAPTER XI. 
 
 Degree of Care 111-115 
 
 1. Bound to reasonable care Ill 
 
 2. Not insurer Ill 
 
 3. Public works 113 
 
 4. Individuals 113 
 
 5. Active vigilance 114 
 
 6. Care proportioned to danger 114 
 
 CHAPTER XII. 
 
 Notice 116-130 
 
 1. Fact of obstruction, not enough 116 
 
 2. Obstruction caused by city or agents 117 
 
 3. License alone not notice 118 
 
 4. Need of notice, generally 118 
 
 5. Ignorance itself negligence 119 
 
 6. Actual notice ; to whom ? 120 
 
 7. Constructive notice sufficient 121 
 
 8. From what inferred 122 
 
 9. Length of time 124 
 
 10. Latent defects 128 
 
 11. Duty of city 128 
 
 12. Statute fixing length of notice constitutional. . 130 
 
 13. Notice of particular defect 130 
 
 14. No presumption of notice from ownership .... 130
 
 Contents. xi 
 
 Page 
 
 CHAPTER XIII. 
 
 Contributory Negligence 131-157 
 
 1. General rule 131 
 
 2. Proximate cause 132 
 
 3. Degree of care 132 
 
 4. Cases : Recovery barred 134 
 
 5. Presumption of safety 136 
 
 6. Right to whole street 138 
 
 7. Knowledge of defect 139 
 
 8. Latent defects 143 
 
 9. Defective vision 1-14 
 
 10. Intoxication 144 
 
 11. Infant 145 
 
 12. Imputed negligence 152 
 
 13. Imminent danger 153 
 
 14. Comparative negligence 154 
 
 15. Acts held to not bar recovery 155 
 
 16. Subsequent carelessness 156 
 
 CHAPTER XIV. 
 
 Some Special Dangers 157-161 
 
 1. Ice as an obstruction 157 
 
 2. Injuries by coasters 160 
 
 CHAPTER XV. 
 
 Shifting Liability. Recovery over 162-167 
 
 A. Shifting Liability 162-164 
 
 1. By ordinance 162 
 
 2. By charter 163 
 
 3. By contract 164 
 
 4. Obstruction by railroads 164 
 
 B. Recovery Over 164-167 
 
 1. General rule 164
 
 xii Contents. 
 
 Page 
 
 2. Ground of liability 165 
 
 3. None against abutting owner 166 
 
 4. Notice 166 
 
 PART II. 
 PRACTICE. 
 
 CHAPTEE I. 
 
 Statute of Limitations 168-172 
 
 1. Introductory 169 
 
 2. Action by person injured 169 
 
 3. Action for loss of services 170 
 
 4. Injuries resulting in death 170 
 
 5. Statute retroactive 170 
 
 6. 62 How. Pr. 255 171 
 
 7. Cohoes charter 171 
 
 8. Schenectady charter 171 
 
 9. In Oswego 172 
 
 10. Limitation of notice 172 
 
 CHAPTEE II. 
 
 Notice or Claim 173-184 
 
 A. New Yoke Statute as to Costs 174-176 
 
 1. Code Civ. Pro. \ 2345 174 
 
 2. Act of 1859 174 
 
 3. Adjudications 174 
 
 4. Does not apply in actions for wrongs 175 
 
 B. Notice of Proposed Action 177 
 
 1. Statute 177 
 
 2. Application 177 
 
 C. Under Charters 177-179 
 
 1. Provisions illustrated 177
 
 Contents. xiii 
 
 Page 
 
 2. Application 178 
 
 3. Construed prospectively 1 ' 9 
 
 4. Under Buffalo charter 179 
 
 D. General Provisions 179-184 
 
 1. Introductory 179 
 
 2. To whom presented 179 
 
 3. What to present 180 
 
 4. Amount claimed 180 
 
 5. Contents of notice 181 
 
 CHAPTER III. 
 
 Pleadings 185-189 
 
 A. The Complaint 185-189 
 
 1. Code requisites 185 
 
 2. Particular requisites 186 
 
 3. Adjudications 187 
 
 B . The Answer 186 
 
 CHAPTER IV. 
 
 Selection of Jurors 190-19- 
 
 1. Introductory 190 
 
 2. Inhabitants incompetent at common law 190 
 
 3. Statutes 191 
 
 4. Rejection of competent juror 191 
 
 CHAPTER V. 
 
 The Plaintiff's Case 193-196 
 
 1. Introductory 193 
 
 2. Incorporation 193 
 
 3. Duty as to streets 194 
 
 4. Presentation of notices 194 
 
 5. Locus in quo * 
 
 6. The defect or obstruction 196 
 
 7. The iDJury i98
 
 xiv Contents. 
 
 8. Burden of proof of negligence 198 
 
 9. Notice \ 
 
 10. Contributory negligence L See following chapters. 
 
 11. Damages \ 
 
 CHAPTEE VI. 
 Notice 200-204 
 
 A. Actual Notice 200-202 
 
 1. Evidence competent 200 
 
 2. Evidence not competent 201 
 
 B. Constructive Notice 202-204 
 
 1. Kule 202 
 
 2. Notoriety 202 
 
 3. Length of time , 203 
 
 4. Weather records 203 
 
 5. Other accidents 204 
 
 6. Ordinances 204 
 
 CHAPTEE VII. 
 
 CONTBTBUTORY NEGLIGENCE 205-210 
 
 1. Burden on plaintiff 205 
 
 2. Eule in maDy States 206 
 
 3. New York rule 207 
 
 4. Circumstances 208 
 
 5. Evidence necessary 209 
 
 6. Wrongful act 209 
 
 CHAPTEE VIII. 
 
 Damages 211-229 
 
 A. Action by Peeson Injubed 212-219 
 
 1. Fact of injury 212 
 
 2. Speculative consequences 213 
 
 3. Measure, generally 213 
 
 4. Compensatory only 213
 
 Contents. xv 
 
 Page 
 
 5. Prospective damages 214 
 
 6. Direct pecuniary loss -" 
 
 7. Evidence of loss -1" 
 
 8. Speculative damages 217 
 
 9. Double damages 217 
 
 10. Physical and mental suffering 217 
 
 11. Disease contracted 218 
 
 12. HI health before injury 218 
 
 13. Pecuniary condition 219 
 
 14. Married woman 219 
 
 B. Action by Husband or Parent 219-220 
 
 1. Measure to husband 219 
 
 2. Measure to parent 220 
 
 C. Injuries Causing Death 220-229 
 
 1. Introductory 220 
 
 2. New York rule 221 
 
 3. Pecuniary damage only 221 
 
 4. Loss to beneficiaries 222 
 
 5. Actual and prospective 222 
 
 6. Measure 223 
 
 7. Elements and evidence 223 
 
 8. Damages to parent 225 
 
 9. Interest 226 
 
 10. Summary 227 
 
 CHAPTER IX. 
 
 The Defendant's Case 230-234 
 
 1. Generally 230 
 
 2. Absence of negligence 230 
 
 3. Absence of notice 233 
 
 4 Act of plaintiff 233 
 
 5. Medical treatment 233 
 
 6. Predisposition to disease 234 
 
 7. Damages 234
 
 xvi Contents. 
 
 Page 
 CHAPTER X. 
 
 Questions fob Court and foe Juey 235-239 
 
 1. Introductory 235 
 
 2. General rule 236 
 
 3. Illustrations 236 
 
 4. Contributory negligence ; rule 237 
 
 5. Contributory negligence for jury ; cases 238 
 
 6. Contributory negligence ; when question for 
 
 court 238 
 
 7. Excessive damages 239 
 
 Foems 241-258
 
 TABLE OF CASES. 
 
 NEW YORK. 
 
 Page 
 
 Aaron v. Second Ave. R. R. Co 2 Daly, 127 214 
 
 Aberdeen r. Blackmar 6 Hill, 324 16G 
 
 Adams r. Saratoga, &c. R. R Co. . .11 Barb. 414 ; 10 N. Y. 328. 50 
 
 Adsit r. Brady 4 Ball, 630 34, 35, 80, 81 
 
 Albany v. Cunliff. 2 N. Y. 165 36, 93 
 
 Allison r. Middletown 101 N. Y. 6G7 236 
 
 Anderson r. Dickie 20 How. Pr. 105 26 
 
 Arcber r. Sixth Ave. R. R. Co 52 Super. 378 213 
 
 Atbolf v. Wolf 22 N. Y. 355 4 
 
 Avery v. Syracuse 29 Hun, 537 66, 71, 204 
 
 Badeau v. Mead 14 Barb. 328 17 
 
 Bailey v. New York 3 Hill, 531 82 
 
 Baine v. Rochester 85 N. Y. 523 17.'., 176 
 
 Baldwin r. Jenkins .1 W. Dig. 398 50 
 
 Bamber v. Rochester 26 Hun, 587 93 
 
 Barney v. Dewey 13 Johns. 224 L66 
 
 Barton v. Syracuse : 37 Barb. 292 ; 26 N, Y. 54.72, 83 
 
 Bassett v. Fish 75 N. Y. 303 139 
 
 Bateman v. Ruth 3 Daly, 378 139 
 
 Battersby v. New York 7 Daly, 16 112, 113 
 
 Baxter v. Warner 6 Hun, 585 26, 35, 41, 100 
 
 Beach v. Bay State Company 10 Abb. Pr. 71 ; 30 Barb. 433. 19 
 
 Beckwith v . New York Central R. R. 
 
 Co 64 Barb. 299 218 
 
 B. [xvii]
 
 xviii Table of Cases. 
 
 Beers v. Pinney .12 Wend. 309 166 
 
 Bennett v. Whitney 94 N. Y, 302 34, 35 
 
 Bernhard v. Bensselaer, &c. B.R. Co.l Abb. Dec. 131 154 
 
 Bidwell v. Murray 40 Hun, 190 91 
 
 Bigler v. New York 5 Abb. N. C. 51 95 
 
 Binsse v. Wood 37 N. Y. 526 166 
 
 Birkett v. Knickerbocker Ice Co. ... 25 W. Dig. 46 ; 41 Hun, 
 
 504 146, 226 
 
 -Bissell v. New York Central B. B. Co.23 N. Y. 61 51 
 
 Blake v. Ferris 5 N. Y. 48 31, 34, 97, 98 
 
 Blakely v. Troy .18 Hun, 167 124, 123 
 
 Bliss v. Schaub 48 Barb. 339 33 
 
 Bonnell v. Jewett 24 Hun, 524 170 
 
 Boom v. Utica 2 Barb. 114 93 
 
 Borst v. Lake Shore, &c. By. Co. . . .4 Hun, 346 ; 66 N. Y. 639. ..237 
 
 Bowen v. Borne 23 W. Dig. 406 10, 239 
 
 Bridgeport Ins. Co. v. Wilson 34 N. Y. 275 166 
 
 Bridges v. Wyckoff 67 N. Y. 130 47, 49 
 
 Brignoli v. Chicago, &c. By. Co ... .4 Daly, 182 205, 216 
 
 Brooklyn v. Brooklyn City B. B. Co.47 N. Y. 475 164, 165, 167 
 
 Brown v. Cayuga, &c. B. B. Co. . . .12 N. Y. 486 26, 27 
 
 Brown v. New York Central B.R. Co.32 N. Y. 597 152 
 
 Brusso v. Buffalo 90 N. Y. 679. 
 
 31, 66, 67, 89,117. 138, 140, 179 
 
 Buel v. New York Central B. E. Co. . 31 N. Y. 314 154 
 
 Buffalo v. Holloway Seld. N. 25 ; 7 N. Y. 493. 
 
 98, 102, 165 
 
 Buffalo v. Yattan ." 1 Buff. Super. Ct. 485 78 
 
 Buffalo, &c. Turnpike Co. v. Buffalo. 1 T. & C. 537 ; 3 T. & C. 4 . . 88 
 
 Bullock v. New York 99 N. Y. 654 3, 139, 140 
 
 Burke v. Broadway, &c. B. B. Co. .34 How. Pr. 239 146 
 
 Burmeister, Re 76 N. Y. 174 68 
 
 Burmeister v. New York Elevated R. 
 
 B. Co 47 Super. 264 98 
 
 Burns v. Dillon 16 W. Dig. 368 37 
 
 Burns v. Schenectady 24 Hun, 10 204 
 
 Bush v. Geneva 3 T. & C. 409 121
 
 Table of Cases. six 
 
 Page 
 
 Butler r. Rochester 4 Hun, 321 175 
 
 Button v. Hudson River R. R. Co. . 18 N. Y. 248 207 
 
 Byrne v. New York Central, &c. R. 
 
 R. Co 83 N. Y. 2G0 ; 94 N. Y. 12..50, 150 
 
 Cabot v. Kane 1 N. Y. St. R. 495 188 
 
 Cain v. Syracuse 29 Hun, 105 ; 95 N. Y. 83,84,163 
 
 Callahan v. Sharp 16 W. Dig. 505 152, 153 
 
 Campbell v. Syracuse 20 W. Dig. 449 70 
 
 Carolus v. New York 6 Bosw. 15 134 
 
 Carpenter v. Blake 75 N. Y, 12 156 
 
 Carpenter v. Buffalo, &c. R. R. Co.. 38 Hun, 116 223, 225, 227 
 
 Carpenter v. Cohoes 81 N. Y. 21 69 
 
 Carpenter v. Gwynn 35 Barb. 395 45, 52 
 
 Carpenter v. Shimer 24 Hun, 464 171 
 
 Carroll v. Staten Island R. R. Co. . .58 N. Y. 126 233 
 
 Center v. Finney 17 Barb. 94 ; Seld. N. 80. . . .132 
 
 Chanrplin v. Penn Yan 34 Hun, 33 5, 204 
 
 Chapman p. New Haven R. R. Co . . 19 N. Y. 341 152 
 
 Child v. Chappell 9 N. Y. 240 47, 52 
 
 Childs v. West Troy 23 Hun, 68 ... . 120, 138, 175, 176 
 
 Chrystal r. Troy & Boston R. R. Co. 22 W. Dig. 551 150 
 
 Clancy v. Byrne 56 N. Y. 129 29 
 
 Clare v. National City Bank 40 Super. 104 99 
 
 Clark r. Kirwan 4 E. D. Smith, 21 15"> 
 
 Clark r. Lockport 49 Barb. 580 73, 123, 143 
 
 Clemence v. Auburn 4 Hun, 386 ; 66 N. Y. 334. 
 
 4, 83, 86, 111 
 
 Clements v. West Troy 16 Barb. 251 ; 10 How. Pr. 
 
 199 50, 52 
 
 Clifford r. Dam 81 N. Y. 52 26, 30, 31 
 
 Cohen v. New York 33 Hun, 404 ; 43 Hun, 345. 
 
 102, 118 
 
 Cole r. Medina 27 Barb. 218 68, 84 
 
 Cole v. Yan Keuren 64 N. Y. 646 43 
 
 Colegrove v. N. Y., &c. R. R. Co. . .20 N. Y. 492 152 
 
 Congreve v. Morgan 18 N. Y. 84 26, 27, 165. 210 
 
 Congreve r. Smith 18 N. Y. 79 26, 27
 
 xx Table of Cases. 
 
 Page 
 
 Conklin v. Thompson 29 Barb. 218 5 
 
 Connery v. Slavin 23 W. Dig. 545 155 
 
 Connors v. New York 11 Hun, 439 95 
 
 Conrad v. Ithaca 16 N. Y. 158 61, 72, 86, 123 
 
 Cook v. Harris 61 N. Y. 448 46, 50, 51, 52 
 
 Codkv. New York Central R. R. Co.. 10 Hun, 426; 1 Abb. Dec. 
 
 432 227,238 
 
 Cooper, Re 6 W. Dig. 144 46, 51 
 
 Cordell v. New York Central, &c. R. 
 
 R. Co 75 N. Y. 330 198, 205 
 
 Cornwall v. Mills 44 Super. 45 221 
 
 Corwin v. Corwin 24 Hun, 147 50 
 
 Coulter v. Am. Mer. Un. Ex. Co. . . .56 N. Y. 585 154 
 
 Cox v. James 45 N. Y. 557 47 
 
 Cox v. New York Central R. R. Co. .11 Hun, 621 10 
 
 Creed v. Hartmann 29 N. Y. 591 26, 37, 38 
 
 Cregin v. Brooklyn Crosstown R. R. 
 
 Co 83 N. Y 595 10, 11 
 
 Crowley v. Panama R. R. Co 30 Barb. 99 19 
 
 Cumming v. Brooklyn City R. R. Co.104 N. Y. 669. 146 
 
 Cummins v. Syracuse 3 East. R. 198 ; 100 N. Y. 637. 
 
 4,136 
 
 Cunningham v. Wright 28 Hun, 178 37 
 
 Curtis v. Keesler 14 Barb. 511 . .45, 46, 49, 52, 53 
 
 Curtis v. Rochester, &o. R. R. Co. . .18 N. Y. 534 217 
 
 Cushen v. Auburn 32 W. Dig. 387 162, 163 
 
 Cuyler v. Decker 20 Hun, 173 154 
 
 Dalrymple v. Oswego 2 W. Dig. 332 170 
 
 Danaher v. Brooklyn 4 Civ. Pro. R. 286 24 
 
 Darling v. New York 18 Hun, 340 128, 139, 141 
 
 Davenport v. Brooklyn City R. R. Co. 32 Alb. L. J. 516 238 
 
 Davenport v. Ruckman 37 N. Y. 568. 
 
 27, 37, 61, 73, 103, 138, 144, 145 
 
 Davies v. New York 4 Civ. Pro. R. 290 93 
 
 Davis v. New York, &c. R. R. Co. . .9 W. Dig. 522 150 
 
 Day v. Crossman 1 Hun, 570 81
 
 Table of Cases. xxi 
 
 Page 
 
 Debevoise r. New York, &o. R. 11. Co.98 N. Y. 377 19 
 
 Do Forest r. Utica 69 N. Y. 614 197, 217 
 
 Delafield v. Union Ferry Co 10 Bosw. 210 205 
 
 Denipsey v. New York 10 Daly, 117 128 
 
 Denning v. Roome 6 Wend. 051 40, 49, 52 
 
 Devenpeck v. Lambert 44 Barb, 596 12 
 
 DeWitt v. Ithaca 15 Hun. 508 47. 52 
 
 Deyoe v. Saratoga Spr 3 T. & O. 504 97, 120 
 
 Dibble v. New York, &c. Ry. Co. . . .25 Barb. 183 Li:! 
 
 Dickens v. New York Central R. R. 
 
 Co 28 Barb. 41 ; 1 Abb. Dec. 504. 
 
 19, 223, 238 
 
 Dickinson v. New York 92 N. Y. 534 ; 28 Hun, 254 ; 
 
 62How. Pr.255. 07, 109, 171 
 Ditcbett r. Spuyten Duyvil, &o. R. 
 
 R. Co 5 Hun, 105 ; 07 N. Y. 425. . . 144 
 
 Diveny v. Elmira 51 IS. T. 506. 
 
 73, 122, 139, 140, 190, 238 
 
 Dixon v. Brooklyn, &c. R. R. Co. . . 100 N. Y. 170 33. 38 
 
 Dongan v. Champlain Trans. Co 56 N. Y. 1 197 
 
 Dorau v. Troy 22 AV. Dig. 231 151, 153 
 
 Dorland v. New Y'ork Central, <£rc. R. 
 
 R. Co 19 W. Dig. 76 137 
 
 Dorlon v. Brooklyn 40 Barb G04 102, 118, 119 
 
 Dowling v. New York Central, &c. R. 
 
 R. Co 92 N. Y. 289 150 
 
 Drake v. Gilmore 52 N. Y. 389 It! 
 
 Dressel v. Kingston 32 Hun, 520. 
 
 98, 100, 102, 174, 170 
 
 Drew v. Sixth Ave. R. R. Co 20 N. Y. 49 151 
 
 Driggs v. Phillips 103 N. Y. 77 52 
 
 Drinkwater v. Dinsmore 10 Hun, 250 ; 80 N. Y. 390. 
 
 210, 217, 234 
 
 Driscoll v. New York 11 Hun, 101 139. 140, 141 
 
 Dubois v. Kingston 20 Hun, 500 ; 102 N. Y. 219, 
 
 8, 136, 171, 204 
 Dunham v. Canandaigua 13 W. Dig. 551 139
 
 xxii Table of Cases. 
 
 Page 
 
 Durkin v. Troy 61 Barb. 437 142, 158 
 
 Duryea v. New York 26 Hun, 120 178 
 
 Dyer v. Erie Ey. Co 71 N. Y. 228 152, 154 
 
 Dygert v. Schenck 23 Wend. 446 26 
 
 Eckert v. Long Island E. E. Co. . . .43 N. Y. 502 154 
 
 Edwards v. New York, &c. E. E. Co. 98 N. Y.245 27 
 
 Eggleston v. Columbia Turnpike Co. 82 N. Y. 278 5 
 
 Ehrgott v. New York 96 N. Y. 264. 
 
 61, 97, 119, 187, 216, 218 
 
 Eleventh Avenue, Ee 49 How. Er. 208 ; 81 N. Y. 
 
 436 49 
 
 Ellis v. Lowville 7 Lans. 434 68, 80, 81, 194 
 
 Ensign v. Livingston Co. Supervi- 
 sors 25 Hun, 20 77, 78 
 
 Erwin v. Neversink, &c. Co 23 Hun, 578 ; 88 N.Y. 184. .227 
 
 Etherington v. Prospect Park, &c. E. 
 
 E. Co 88 N. Y. 641 221, 222 
 
 Evans v. Utica 69 N. Y. 166. .111, 116, 139, 140 
 
 Eveleigk v. Hounsfield 34 Hun, 140 80 
 
 Evers v. Hudson E. Bridge Co 18 Hun, 144 124, 126 
 
 Fallon v. Central Park E. E. Co. . .64 N. Y. 13 150 
 
 Filer v. New York Central E. E. Co . 49 N. Y. 47 214, 235 
 
 Finklestein v. New York Central, &c. 
 
 E. E. Co. 41 Hun, 34 150 
 
 Fisher v. Cortland 26 W. Dig. 253 176 
 
 Fitzgerald v. Binghamton 40 Hun, 332 76, 208 
 
 Fitzpatrick v. Slocum 89 N. Y. 358 75, 76 
 
 Fitzsimnions v. Eome 21 W. Dig. 343 219 
 
 Flack v. Green Island 23 W. Dig. 534. . .45, 49, 51, 52 
 
 Floods v. Buffalo, &c. E. E. Co 23 W. Dig. 501 151 
 
 Fonda v. Borst 2 Abb. Dec. 155; 2 Keyes, 48. 
 
 48,50 
 
 Ford v. Monroe 20 Wend. 210 20 
 
 Foster v. N. Y. Central, &c. E. E. Co. 2 How. Er. N. S. 416; 23 W. 
 
 Dig. 18 135
 
 Table of Cases. xxiii 
 
 Page 
 
 Frasier v. Tompkins 30 Hun, 1G8 91 
 
 Fulton r. Tucker 5 T. & O. 621.. . .37, 68, 73, 166 
 
 Gage v. Hornellsville 21 W. Dig. 276; 41 Hun, 80 
 
 139, 175 
 
 Galatian v. Gardner 7 Johns. 10G 42 
 
 Gale v. N. Y. Central, &c. R. R. Co.. 76 N. Y. 594 2::'.) 
 
 Gardner v. Bennett 38 Super. 197 98, 99 
 
 Garlinghouse r. Jacobs 29 N. Y. 297 87 
 
 Garrett v. Buffalo 22 W. Dig. 262 ; 26 Id. 257 
 
 124, 127 
 
 Gaylord v. Syracuse, &c. R. R. Co. .22 W. Dig. 396 152 
 
 Gill v. Rochester & Pittsburgh K. R. 
 
 Co 37 Hun. 107 220 
 
 Gillespie v. Newburgh 54 N. Y. 468 238 
 
 Gilligan v. N. Y. <fc Harlem R. R. Co.l E. D. Smith, 453.. 11, 188, 226 
 
 Glendening v. Sharp 22 Hun, 78 205, 209 
 
 Goillotel v. New York 87 N. Y. 441 171 
 
 Goodfellow v. New York 100 N. Y. 15.. 3, 67, 122, 232, 237 
 
 Gorham v. Cooperstown 59 N. Y. 660 . . . 62, 111, 113, 116 
 
 Gorham v. N. Y. Central,&cR. R. Co.23 Hun, 449 229 
 
 Gould v. Glass 19 Barb. 179 53 
 
 Gourdier v. Cormack 2 E. D. Smith, 254 98 
 
 Gowan v. Brooklyn Crosstown R. R. 
 
 Co 2 Mo. Bui. 12 140 
 
 Grant v. Brooklyn 41 Barb. 381 89 
 
 Graves v. Otis 2 HiU, 466 68 
 
 Gray v. Brooklyn 50 Barb. 3G5 ; 2 Abb. Dec. 
 
 267 75 
 
 Green r. Erie By. Co 11 Hun, 333 155 
 
 Green v. Hudson River R. R. Co. . .28 Barb. 9 ; 2 Keyes, 294 i 2 
 
 Ab. Dec. 277 21 
 
 GriflSn v. New York 9 N. Y. 456. 
 
 79, 104, 116, 119, 136 
 
 Grinnell v. Kirtland 2 Abb. N. C. 886 ; 6 Daly, 
 
 356; OS N. Y. 02'.t..45, 48, 60 
 Griswold v. New York Central R. R. 
 
 Co 16 W. Dig. 358 214
 
 xxiv Table of Cases. 
 
 Page 
 
 Groth v. Washburn 34 Hun, 509 11, 170 
 
 Groves v. Kochester 39 Hun, 5 89, 97, 99, 117 
 
 Gubasco v. New York 12 Daly, 192 4, 129 
 
 Gumb v. Twenty-third St. E. KCo.l N. Y. St. E. 715 138, 222 
 
 Hagenlocher v. Coney Island & E.E. 
 
 Co 99 N. Y. 136 212 
 
 Hale v. Smith 78 N. Y. 480 198, 205 
 
 Haley v. Earle 30 N. Y. 208 130 
 
 Halpin v. Third Ave. E. E. Co 40 Super. 175 205 
 
 Ham v. New York 70 N. Y. 459. 95 
 
 Hanse v. Cowing 1 Lans. 288 26 
 
 Hardy v. Brooklyn 90 N. Y. 435 ; 7 Abb. N. C. 
 
 403 75, 85 
 
 Harris v. Perry 23 Hun, 244 ; 84 N. Y. 308. 139 
 
 Harris v. Uebelhoer 75 N. Y. 169 144 
 
 Hart v. Brooklyn 36 Barb. 226. . .68, 119, 123, 176 
 
 Hart v. Hudson Eiver Bridge Co. . .80 N. Y. 622 ; 84 N. Y. 56. 
 
 199, 205, 208 
 
 Hart v. New York 9 Wend. 571 26 
 
 Hartfield v. Eoper 21 Wend. 615 148 
 
 Harvey v. New York, &c. E. E. Co. .23 W. Dig. 198 152 
 
 Hays v. Miller .70 N. Y. 112 236 
 
 Healy v. New York 3 Hun, 708 3, 144 
 
 Hegerich v. Keddie 99 N. Y. 258 19 
 
 Heintze v. New York 50 Super. 295 124, 132 
 
 Heiser v. Hatch 86 N. Y. 614 166 
 
 Helmrich v. Hart 16 W. Dig. 356 154 
 
 Herrington v. Corning 51 Barb. 396 93 
 
 Herrington v. Lansingburgh 36 Hun, 598 98, 99 
 
 Herrington v. Phoenix 41 Hun, 270 119 
 
 Hickok v. Plattsburgh 41 Barb. 130 41, 60 
 
 Hildreth v. Troy 101 N. Y. 234 3, 191 
 
 Hiller v. Sharon Springs 28 Hun, 344. . . .51, 58, 104, 212 
 
 Hines v. Lockport 50 N. Y. 236. 
 
 3, 67, 73, 79, 80, 81, 83, 89, 231 
 Hirsch v. Buffalo 21 W. Dig. 312. . . .103, 171, 196
 
 Table of Cases. xxv 
 
 Page 
 
 Hoag v. New York, &c. R. E. Co. . .21 W. Dig. 506 205 
 
 Holdane v. Cold Spring 21 N, Y. 474 45. 48, 50 
 
 Honegsberger r. Second Ave. Ii. R. 
 
 Co 2 Abb. Dec. 379 146 
 
 Hope v. Troy, &c. R R. Co 40 Hun, 438 150 
 
 Houghkirk v. Delaware, &c. Canal 
 
 Co 92 N. Y. 219 221, 222, 223 
 
 Hover r. Barkhoof 44 N. Y. 113 34, 35, 80, 81 
 
 Howell r. Buffalo 15 N. Y. 512 176 
 
 Hubbell r. Yonkers 35 Han, 349 87, 89 
 
 Huggins v. Salamanca 25 W. Dig. 401 ; 43 Hun. 
 
 633 121 
 
 Hume v. New York 74 N. Y. 264 ; 47 N. Y. 639. 
 
 4. 61. 119, 122, 237 
 
 Hunt v. New York 52 Super. 198 62, 104, 119 
 
 Hunter v. Sandy Hill 6 Hill, 407 45, 46, 49, 52 
 
 Hutson v. New York 9 N. Y. 163 61, 79, 72, 111 
 
 Hyatt v. Rondout 44 Barb. 385 ; 41 N. Y. 619. 
 
 69, 72, 78, 123, 231 
 
 Ihl v. Forty-second St. R. R. Co. . . .47 N. Y. 317. 
 
 146, 148, 151, 224, 225 
 
 Ingrabam, Re 4 Hun, 495 ; 64 N. Y. 310 ... 51 
 
 Irvine v. Wood 51 N Y. 224 . . 26, 27, 30, 31, 37 
 
 Jennings ?•. Van Scbaick 13 Daly, 510 37 
 
 Jobnson v. Hudson River R. R. Co. 20 N. Y. 65 208 
 
 Jones v. New York Central, &c. R. R. 
 
 Co 10 Abb. N. C. 200 208, 209 
 
 Jones ?•. Utica & Black River R. R. 
 
 Co 36 Hun, 115 ; 40 Hun, 349. 
 
 10, 150, 211. 220 
 
 Jordan v. Bowen 46 Super. 355 212 
 
 Jordan v. Otis 37 Barb. 50 49, 51 
 
 Judson r. Olean 40 Hun, 158 17.">. 1 7»i 
 
 Kavanagh v. Brooklyn 38 Barb. 232 85
 
 xxvi Table of Cases. 
 
 Page 
 
 Keller v. New YorkCentral B. E. Co . 7 How. Pr. 102 18, 19 
 
 Kellogg v. New York Central K. E. 
 
 Co 79 N. Y. 73 225 
 
 Kelly v. New York 11 N. Y. 432. .. .34, 97, 98, 99 
 
 Kennedy v. New York 73 N. Y. 365 107, 109 
 
 Kennedy v. Eyall . . .67 N. Y. 379 223 
 
 Kenney v. New York Central, &c. 
 
 E. E. Co 13 W. Dig. 61 205,209 
 
 King v. Chapin 23 W. Dig. 528 85 
 
 King v. New York Central, &c. E. E. 
 
 Co 66 N. Y. 181 98 
 
 Kinney v. Troy 38 Hun, 285. 
 
 124, 126, 127, 159, 202 
 
 Knight v. Bath-on-the-Hudson 21 W. Dig. 301 139 
 
 Knupfle v. Knickerbocker Ice Co. . .84 N. Y. 488 163 
 
 Koch v. Edgewater 14 Hun, 544 ; 18 Hun, 407. 
 
 4, 68, 139, 140 
 
 Kunz v. Troy 36 Hun, 615 ; 35 Alb. L. J. 
 
 232; 5N. Y. St.E. 642. 
 3, 64, 95, 124, 129, 150, 156, 201 
 
 Lacour v. New York 3 Duer, 406 88, 89, 100 
 
 La Duke v. Fultonville 20 W. Dig. 453 80 
 
 Lane v. Wheeler 35 Hun, 606 108 
 
 Lavery v. Hannigan 52 Super. 463 67, 68 
 
 Lee v. Sandy Hill 40 N. Y. 442 49 
 
 Lee v. Troy City Gas-light Co 98 N. Y. 115 187 
 
 Leeds v. Metropolitan Gas-light Co .90 N. Y. 26 215 
 
 Lehman v. Brooklyn 29 Barb. 234 205, 221, 222 
 
 Leonard v. Columbia Steam Nav. Co . 84 N. Y. 48 20 
 
 Littlewood v. New York 89 N. Y. 24 23 
 
 Lloyd v. New York 5 N. Y. 369 82, 85 
 
 Lockwood v. New York 2 Hilton, 66 100 
 
 Lockwood v. New York, &c. E. E. 
 
 Co , 98 N. Y. 523 224, 225, 226 
 
 Lowery v. Manhattan E. E. Co 1 No. East. R. 608 154 
 
 Lowhouse v. Buffalo 22 W. Dig. 109 130
 
 Table of Cases. xxvii 
 
 Page 
 
 Lucas v. New York Central R. R. Co. 21 Barb. 245 16, 21 
 
 Ludlow r. Yonkers 48 Barb. 493 88 
 
 Lynch v. Davis 12 How. Pr. 323 11, 20 
 
 Lynch v. New York 76 N. Y. GO 84 
 
 Lyons v. Erie Ry. Co 57 N. Y. 489 156, 233 
 
 Macauley v. New York 67 N. Y. 602 107, 109 
 
 Magee v. Troy Not reported 180 
 
 Mahler r. Norwich, &c. Trans. Co. .35 N. Y. 352 • 19 
 
 Mairs r. Manhattan Association. . . .89 N. Y. 498 30, 33 
 
 Malone v. New York Central, <fcc. R. 
 
 R. Co 20 W. Dig. 252 225 
 
 Mangani r. Brooklyn R. R. Co 38 N. Y. 455 145, 150 
 
 Manning r. Port Henry Iron Co. . . .91 N. Y. 664 227 
 
 Marks v. Long Island R. R. Co. . . .25 W. Dig. 189 217 
 
 Marsh r. Lansingburgh 31 Hun, 514 174 
 
 Martin v. New York 1 Hill. 545 96 
 
 Martin v. Tribune Association 30 Hun, 391 98 
 
 Masterson v New York Central, &c. 
 
 R. R. Co 84 N. Y. 246 152 
 
 Masterton v. Mount Vernon 58 N. Y. 391. 
 
 102, 103, 104, 118, 119, 217 
 Matteson v. New York Central R. R. 
 
 Co 62 Barb. 364 ; 35 N. Y. 487. 214 
 
 Maxmilian r. New York 62 N. Y. 160. 
 
 77, 78, 82, 84, 95, 97, 100 
 McCafferty r. Spuyten Duyvil, <fce. 
 
 R. R. Co 61 N. Y. 178 98, 100 
 
 McCallum v. Long Island R. R. Co. 38 Hun, 569 152 
 
 McCamus v. Citizens' Gas-light Co. .40 Barb. 380 31 
 
 McCarthy v. Syracuse 46 N. Y. 194 73, 89 
 
 McClure r. Niagara Co. Supervisors . 3 Abb. Dec. 83 176 
 
 McDermott v. Kingston 19 Hun, 198 118, 121 
 
 McDermott r. Third Ave. R, R. Co. 26 W. Dig. 250 209 
 
 McDonald v. Mallory 7 Abb. N. 0. 84 ; 77 N. Y. 
 
 546 19 
 
 McGaffin v. Cohoes 74 N. Y. 387 171
 
 xxviii Table of Cases. 
 
 Page 
 
 McGarry r. Loomis 63 N. Y. 104 64, 65, 146 
 
 McGinity v. New York 5 Duer, 674 104, 116, 119 
 
 McGovern v. New York Central, ifcc. 
 
 B. B. Co 67 N. Y. 417. 
 
 21, 150, 151, 225, 226 
 
 McGrath v. Hudson Eiver E. E. Co. 32 Barb. 144 155 
 
 McGuire v. Spence 91 N. Y. 303; 99 N. Y. 654. 
 
 27, 64, 137, 140, 150, 155, 210 
 Mclntyre v. New York Central, &c. 
 
 E. E. Co 37 N. Y. 287 224 
 
 McKay v. Buffalo 9 Hun, 401 ; 72 N. Y. 619 
 
 95, 202 
 
 McKenna v. New York 47 Super. 541 119, 163 
 
 McMahon v. New York 33 N. Y. 642 19 
 
 McMabon v. New York Elevated E. 
 
 E. Co 50 Super. 507 205 
 
 McMalion v. Second Ave. E. E. Co. 11 Hun, 347 ; 75 N. Y. 231. 
 
 37, 38, 89, 113 
 
 McMannis v. Butler 51 Barb. 436 ; 49 Id. 176. 
 
 45, 46, 47, 50, 51, 52, 53, 55, 56, 59 
 
 McMullen v. Hoyt 2 Daly, 275 12 
 
 Meigs v. Buffalo 23 W. Dig. 497 10, 220 
 
 Mcrritt v. Fitzgibbons 29 Hun, 634 ; 102 N. Y. 632 . 106 
 
 Metcalf v. Baker 11 Ab. Pr. N. S. 431 ; 57 N. 
 
 Y. 662 152, 215 
 
 Miller v. McCloskey 1 Civ. Pro. 252 150 
 
 Mills v. Brooklyn 32 N. Y. 489 83, 85 
 
 Minick v. Troy 83 N. Y. 514 ; 19 Hun, 523. 
 
 3, 134, 181, 210, 239 
 Mitchell r. New York Central, &c. 
 
 E. E. Co 2 Hun, 535 ; 64 N. Y. 655. . 221 
 
 Monahan v. Cohoes 8 W. Dig. 528 ; 10 Id. 112. 
 
 134, 198 
 
 Monk v. New Utrecht 104 N. Y. 561 145 
 
 Montfort v. Hughes 3 E. D. Smith, 591 36 
 
 Moody v. Osgood 54 N. Y. 488; 50 Barb. 628 
 
 208, 216, 219, 237
 
 Table of Casks. xxix 
 
 Page 
 Moore v. Birdsall 22 W. Dig. 530 197 
 
 Moore v . Gadsden 87 N. Y. 84 37 
 
 Morey v. Newfane 8 Barb. 645 89 
 
 Morrell v. Peck 88 N. Y. 398 81, 139, 197 
 
 Morrison v. New York Central, &o. 
 
 R. R. Co 68 N. T. 643 209 
 
 Morse v. Troy 38 N. Y. 301 57 
 
 Mosey v. Troy Gl Barb. 580 73, 128, 158 
 
 Mosher v. Russell 2G W. Dig. 234 212 
 
 Mowrey v. Central City Ry 6G Barb. 13 ; 51 N. Y. GG6 . . 150 
 
 Muller v. Decker 19 "W. Dig. 426 192 
 
 Muller v. Newburgh 19 W. Dig. 550 ; 32 Hun, 24. 
 
 112, 124, 125, 127, 159 
 
 Munger v. Tonawanda R. R. Co . . .4 N. Y. 349 131 
 
 Munroe v. Third Ave. R. R. Co 50 Super. 114 237 
 
 Murphey v. Buffalo 22 W. Dig. 284 180 
 
 Murphy v. New York Central, <fce. R. 
 
 R. Co 88 N. Y. 445 222 
 
 Nagel v. Buffalo 34 Hun, 1 178, 188 
 
 Nash v. Sharpe 19 Hun, 365 216 
 
 Neeson v. Troy 29 Hun, 173 10 
 
 Nelson v. Canisteo 100 N. Y. 89 71. 232 
 
 Newman v. Third Ave. R. R. Co .... 19 W. Dig. 500 213 
 
 New York r. Bailey 2 Denio, 433 96, 113, 114 
 
 New York v. Furze 3 Hill, 612 61, 79 
 
 New York, &o. Co. v. Brooklyn 71 N. Y. C80 96 
 
 Niagara Falls, &c. Co. v. Bachman. .66 N. Y. 261 44, 45, 50 
 
 Nichols r. Brooklyn City R. R. Co. 30 Hun, 437 212 
 
 Nims v. Troy 59 N. Y. 500 88 
 
 Niven v. Rochester 76 N. Y. 619 . 
 
 51, 97, 111, 163, 232, 238 
 
 Nolan v. King 97 N. Y. 565 30, 31, 32, 113 
 
 Nowell v. New York 52 Super. 382. . .4, 182, 208, 209 
 
 Oldfield r. New York, &o. R. R. Co. 14 N. Y. 310 12, 19 
 
 O'Hagan v. Dillon 42 Super. 456 ; 76 N. Y. 170. 
 
 144, 199, 204
 
 xxx Table of Cases. 
 
 Osborn v. Union Ferry Co 53 Barb. 629 89, 102 
 
 Oswego v. Oswego Canal Co 6N.Y. 257 51 
 
 Pack v. New York. 8 N. Y. 222 34, 98, 99 
 
 Palmer v. Dearing 93 N. Y. 7 139, 140 
 
 Parker v. Cohoes 10 Hun, 531 ; 74 N. Y. 610. .231 
 
 Payne v. Troy & Boston B. B. Co. .9 Hun, 526 ; 83 N. Y. 572. 
 
 197, 236 
 
 Peach v. Utica 10 Hun, 477 80, 121, 144 
 
 Pearsall v. Hewitt 20 Wend. Ill ; 22 Id. 559. . . 53 
 
 PearsaU v. Post 20 Wend. Ill 42, 53 
 
 Peck v. Batavia 32 Barb. 634 68 
 
 Pendril v. Second Ave. B. B. Co. . .34 Super. 481 238 
 
 People v. Adsit 2 Hill, 619 80 
 
 People v. Brooklyn 48 Barb. 211 48 
 
 People v. Jewett 3 Wend. 314 192 
 
 People v. Kingman 24 N. Y. 559 60 
 
 People v. Lawson 17 Johns. 277 42 
 
 People v. Livingston 27 Hun, 105 26, C3 
 
 People v. Loehfelm 102 N. Y. 1. 47, 51,52 
 
 People v. Van Alstyne 3 Abb. Dec. 575 60 
 
 People ex rel. Loomis v. Little Val- 
 ley 75 N. Y. 316 90 
 
 People ex rel. Markey v. Brooklyn. . 65 N. Y. 349 103 
 
 Pettengill v. Yonkers 25 W. Dig. 451 97, 122 
 
 Phelps v. Wait 30 N. Y. 78 36, 38 
 
 Phillippi v. Wolff. 14 Abb. Pr. N. S. 196 11 
 
 Phillips v. Fishkill 26 W. Dig. 103 139, 237 
 
 Phyfe v. Manhattan By. Co 30 Hun, 377 217 
 
 Piercy v. Averill 37 Hun, 360 77, 88 
 
 Pierrepont v. Loveless 72 N. Y. 211 98 
 
 Platz v. Cohoes 89 N. Y. 219 ; 24 Hun, 101 ; 
 
 8 Abb. N. C. 392. 
 
 89, 117, 152, 233 
 
 PoUey v. Buffalo 20 W. Dig. 163 96 
 
 Pomfrey v. Saratoga Springs 34 Hun, 607 ; 104 N. Y. 459. 
 
 51, 52, 59, 68, 80, 81, 114, 115, 179 
 Porter v. Attica 33 Hun.. 605 45, 53, 58
 
 Table of Cases. xxxi 
 
 Page 
 Port Jervis v. First National Bank .96 N. Y. 550. 
 
 89, 102, 164, 105, 160 
 
 Post v. Pearsall 22 Wend. 125 47 
 
 Prendergast v. New York Central, 
 
 &c. R. R Co 58 N. Y. 662 148, 150, 223 
 
 Quin v. Moore 15 N. Y. 432 18, 19 
 
 Quinlan v. Utica 11 Hun, 217 ; 74 N. Y. 003. 
 
 179, 203, 204 
 Quinn v. Power 29 Hun, 183 ; 87 N. Y. 5:55 . . 224 
 
 Radclirfs Executors v. New York . . .4 N. Y. 195 83 
 
 Ransom r. New York & Erie R. R. Co.15 N. Y. 415 217 
 
 Rebuilding Bridge, Re 100 N. Y. 042 42 
 
 Rector v. Pierce 3 T. & C. 416 . . .155 
 
 Reed v. New York 31 Hun, 311 ; 97 N. Y. 620. 
 
 124, 103, 181, 231 
 
 Rehberg v. New York 91 N. Y. 137. 
 
 4, 30, 04, 66, 79, 119, 120, 124, 202 
 
 Reich v. New York 12 Daly, 72 128 
 
 Reinhard v. New York 2 Daly, 243 02 
 
 Reining v. Buffalo 102 N. Y. 308 188 
 
 Requa r. Rochester 45 N. Y. 129. 
 
 50, 61, 73, 122, 123, 144 
 Reynolds v. New York Central, &c. 
 
 B.B.Co 2 T. & C. 044 ; 58 N. Y. 248. 
 
 Us, 150 
 
 Rhinelander, Re 68 N. Y. 105 48 
 
 Riceman v.. Havemeyer 84 N. Y r . 047 205 
 
 Richard v. New York 48 Super. 315 06 
 
 Ring v. Cohoes 77 N. Y. 83 3, 106, 108, 111 
 
 Roberts v. Ogdensburgh, &c. R. R. 
 
 Co 29 Hun, 154 213 
 
 Robinson v. Chamberlin 34 N. Y. 389 34, 35 
 
 Robinson v. New York Central, &o. 
 
 R R Co 05 Barb. 11 ; 00 N. Y. 11. 
 
 152, 207 
 Rochester v. Montgomery 72 N. Y. 05 104, 167
 
 sxxii Table of Cases. 
 
 Page 
 Rochester White Lead Co. v. Roch- 
 ester 3 N. Y. 463. .82, 85, 88, 113, 232 
 
 Boeder v. Ormsby 22 How. Pr. 270 222 
 
 Roll v. Northern Central Ry. Co. . . .15 Hun, 496 ; 80 N. Y. 647. .154 
 
 Rozell v. Andrews 103 N. Y. 150 50 
 
 Rudolphy v. Fuchs 44 How Pr. 155 238 
 
 Russell v. Canastota 98 N, Y. 496 3, 38, 163 
 
 Ryall v. Kennedy 40 Super. 347 223 
 
 Ryan v. New York Central, &c. R. R. 
 
 Co 37 Hun, 186 150 
 
 Ryan v. Wilson 87 N. Y. 471 29 
 
 Ryder v. New York 50 Super. 220 147 
 
 Salter v. Utica, &c. R. R. Co 86 N. Y. 401 227 
 
 Saulsbury v. Ithaca 24 Hun, 12 ; 94 N. Y. 27. 
 
 3, 84, 111 
 
 Saunders v. Townsend 26 Hun, 308 60 
 
 Sauter v. New York Central, &c. R. 
 
 R. Co 65 N. Y. 50 224 
 
 Scanlon v. New York 12 Daly, 81 100, 128 
 
 Schindler v. New York, &c. R. R. Co.l N. Y. St. R. 289 151, 205 
 
 Schlicting v. Wintgen 25 Hun, 626 23 
 
 Schomer v. Rochester 15 Abb. N. C. 57 51, 69 
 
 Schwandner v. Birge 33 Hun, 186 208 
 
 Scott v. Wood 18 W. Dig. 441 152 
 
 Seneca FaUs v. Zalinski 8 Hun, 571 ... . 89, 164, 165, 167 
 
 Sevestre v. New York 47 Super. 341 117, 231 
 
 Sewell v. Cohoes 11 Hun, 626 ; 75 N, Y. 45. 
 
 51, 52, 57, 79, 238 
 
 Sexton v. Zett. . . . ; 56 Barb. 119 ; 44 N. Y. 430. . 33 
 
 Seybolt v. New York, &c. R. R. Co. .95 N. Y. 562 199 
 
 Sheehan v. Edgar 58 N. Y. 631 215 
 
 Shook v. Cohoes 23 W. Dig. 4 122 
 
 Simonin v. New York, &c. R. R. Co.36 Hun, 214 216 
 
 Smedis v. Brooklyn, &c. R. R. Co. . .23 Hun, 279 ; 88 N. Y. 13. . .208 
 
 Smid v. New York 49 Super. 126 115 
 
 Smith v. Brooklyn 36 Hun, 224 124, 125
 
 Table of Cases. xxxiii 
 
 Page 
 
 Smith v. New York 15 W. Dig. 103 3 
 
 Smith v. New York CG N. Y. 295 119 
 
 Smith v. Eochester 76 N. Y. 50 93, 94 
 
 Smith v. Wright 24 Barb. 170 80 
 
 Solomon v. Central Park E. R. Co. . 1 Sweeny, 298 146 
 
 Spaulding v. Jarvis 32 Hun, 621 237 
 
 Spooner v. D., L. & W. E. E. Co. . .1 N. Y. St. E. 558 154 
 
 Staal v. Grand St., &c. E. E. Co. . . .36 Hun, 208 214, 215, 216 
 
 Stackus r. New York Central, (fee. E. 
 
 E. Co 79 N. Y. 464 237 
 
 Steivermann v. White 48 Super. 523 33, 154, 232 
 
 Still well v. New York 49 Super. 360. 
 
 3, 111, 112, 194, 204 
 
 Storrs v. Utica 17 N. Y. 104 89, 100, 102 
 
 Strohm r. New York, &c. E. E. Co. .96 N. Y. 305 213, 214 
 
 Strong v. Brooklyn 68 N. Y. 1 57 
 
 Stuebing v. Marshall 2 Civ. Pro. E. 77 . . . .22, 23, 225 
 
 Suydarn v. Moore 8 Barb. 358 36, 38 
 
 Sweet v. Gloversville 12 Hun, 302 118 
 
 Swords v. Edgar 59 N. Y. 28 27 
 
 Taylor v. Cohoes 35 A. L. J. 357 176 
 
 Taylor v. Hopper 2 Hun, 646 ; 62 N. Y. 649. . 47 
 
 Taylor v. Yonkers 26 W. Dig. 376. 
 
 106, 112, 162, 204 
 
 Terry v. Jewett 78 N. Y. 338 225 
 
 Thieme v. Gillen 41 Hun, 443 36 
 
 Thomas v. New York 28 Hun, 110 139, 141 
 
 Thomas v. Utica, .fee. E. E. Co 6 Civ. Pro. E. 353 ; 34 Hun, 
 
 626 223 
 
 Thurber v. Harlem, <fec. E. E. Co. . .60 N. Y. 326. .149, 150, 235, 236 
 
 Tice v. Munn 94 N. Y. 621 218 
 
 Tierney v. Troy 41 Hun, 120. . .51, 67, 164, 196 
 
 TiUey v. Hudson Eiver E. E. Co.. . .24 N. Y 471 1'.'. 221, 22 1 
 
 Tinkham v. New York N. Y. Daily Eeg., Oct. 22, 
 
 1883 231 
 
 Todd v. Troy 61 N. Y. 506 
 
 73, 78, 111, 114, 116, 117, 123, 139, 140, 238
 
 xxxiv Table of Cases. 
 
 Page 
 
 Tolman v. Syracuse, &c. E. E. Co . . 98 N. Y. 198 209 
 
 Tone v. New York 70 N. Y. 157 95 
 
 Toriney v. New York 12 Hun, 542 96 
 
 Tozer v. New York Central, &c. R. 
 
 E Co 26 W. Dig. 72 213 
 
 Traver v. Eighth Ave. R. R. Co 4 Abb. Dec. 422 11, 12 
 
 Troy v. Troy, &c. R R. Co 49 N. Y. 657 164, 165, 167 
 
 Tweed v. Davis 1 Hun, 252 192 
 
 Twogood v. New York 102 N. Y. 216. 
 
 120, 139, 140, 141, 202 
 Twomley v. Central Park, &c. R. R. 
 
 Co 69 N. Y. 158 154 
 
 Urquhart v. Ogdensburgh 91 N. Y. 67 ; 97 N. Y. 238. 
 
 4, 8, 85, 86, 127, 187 
 Utica Water Works v. Utica 31 Hun, 426 174 
 
 Vale v. Bliss 50 Barb. 358 155 
 
 Van Alstine v. Clyde 17 W. Dig. 565 143 
 
 Vandercook v. Cohoes 12 W. Dig. 84 139 
 
 Vandeventer v. New York. &c. R. R. 
 
 Co 27 Barb. 244 19 
 
 Van Ostran v. New York Central, &c. 
 
 R. E. Co 35 Hun, 590 132 
 
 Van Vranken v. Schenectady 31 Hun, 516. . .73, 77, 130, 172 
 
 Veeder v. Little Falls 100 N. Y. 637 4, 59, 69 
 
 Vincent v. Brooklyn 31 Hun, 122 75 
 
 Voak v. Northern Central Ey. Co . . . 75 N. Y. 320 154 
 
 Vosper v. New York 49 Super. 296 4 
 
 Waddell v. New York 8 Barb. 95 85 
 
 Walker v. Erie Ey. Co 63 Barb. 260 , 217 
 
 Walker v. Lockport 43 How. Pr. 366 67, 122 
 
 Wallace v. New York 18 How. Pr. 169 162 
 
 Walsh v. Mead 8 Hun, 387 27 
 
 Walsh v. New York 41 Hun, 299 96 
 
 Wardwell v. New York 1 N. Y. St. E. 784 198
 
 Table of Cases. xxxv 
 
 Page 
 "Warner r. New York Central R. R. 
 
 Co 41 X. Y. 405 205 
 
 Warren v. Clement 24 Hun, 472 80 
 
 Washburn v. Mt. Kisco 35 Hun, 329 71 
 
 Wasmer v. Delaware, &c. R. R. Co. .80 X. Y. 212 27 
 
 Watson r. Forty-second St. R. R. Co.93 X. Y. 522 109, 171 
 
 Watson r. Kingston 20 W. Dig. 15 85 
 
 Weber v. Herkimer, £c. R. R. Co. . .35 Hun, 44 109 
 
 Webster r. Hudson River R. R. Co . . 38 X. Y. 200 152 
 
 Weed v. Ballston 70 X. Y. 329. 
 
 73, 78, 81, 111, 119, 122, 129, 139, 231 
 
 Weet v. Brockport 10 X. Y. 101, note. 
 
 35, 72, 77, 78 
 
 Weidmer v. New York EL Ry. Co. .41 Hun, 284 199 
 
 Welsh v. Wilson 101 X. Y. 254 7, 114 
 
 Wendell r. Xew York Central, kc. E. 
 
 E. Co 91 X. Y. 420 147 
 
 Wendell v. Troy 39 Barb. 329 ; 2 Keyes, 201 ; 
 
 4 Abb. Dec. 503. .103, 117, 21 i 
 
 Wenzliek r. McCotter 87 N. Y. 122 29 
 
 Whitford r. Panama E. E. Co 23 X. Y. 405 12, 1'.), 11 
 
 Wiggins r. Tallmadge 11 Barb. 457 45, 46. 55, 60 
 
 Williams v. Buffalo 25 Hun, 301 175. 179 
 
 Williams r. Delaware, &c. E, E. Co.39 Hun, 430 100 
 
 Williams v. Syracuse Iron Works. . .31 Hun, 392 238 
 
 Wilson r. Xew York 1 Denio, 595 82, 83. 8".. LI (2 
 
 Wilson v. Watertown 5 T. & C. 579 ; 3 Him, 50S. 
 
 . 68, 103 
 
 Wood v. Andes 11 Hun. 543 20'J 
 
 Woodward r. Washburn 3 Denio, 309 12 
 
 Wolf v. Kilpatrick 101 X. Y. 140 29, 30 
 
 Wolfe r. Richmoud Co. Supervisee. 19 How. Pr. 370 1-7 
 
 Woolbridgc v. Xew York 49 How. Pr. 07 94 
 
 Wooley v. Grand St., &c. R. R. Co. .83 X. Y. 121 132, L33 
 
 Woram v. Xoble 41 Hun, 398 20. 28 
 
 Wright r. Wilcox 19 Wend. 343 30, 38 
 
 Yertore v. Wiswall 10 How. Pr. 8 19
 
 xxxvi Table of Cases. 
 
 OUTSIDE NEW YORK. 
 
 Page 
 
 Abilene v. Hendricks (Kan. ) 13 Pac. E. 121 197 
 
 Albion v. Herrick , . . . .90 Ind. 545 139, 141 
 
 Albrittin v. Huntsville 60 Ala. 4S6 73, 80, 123 
 
 Aldrich v. Gorham 77 Me. 287 107, 109 
 
 Aldricb v. Tripp 11 K. I. 14 78 
 
 Alexander v. Mt. Sterling 71 Hi. 366 117 
 
 Altnow v. Sibley 30 Minn. 181 90 
 
 Arkadelpbia v Windham (Ark.) 36 Alb. L. J. 97 90 
 
 Armstrong t. Ackley (Iowa) 32 No. W. R. 780 198 
 
 Aston v. Newton 134 Mass. 507 70 
 
 Atchison v. King 9 Kan. 553 62, 127, 160 
 
 Atlanta v. Perdue 53 Ga. 607 114 
 
 Atlanta v. Wilson 59 Ga. 544 4 
 
 Augusta v. Hafers 61 Ga. 48 204 
 
 Aurora v. Bilner 100 Ind. 396 105 
 
 Aurora v. Brown 11 111. Ap. 122 143 
 
 Aurora v. Dale 90 111. 46 139, 141 
 
 Aurora v. Pennington 92 III. 564 201 
 
 Bailey v. Everett 132 Mass. 441 183 
 
 Baltimore v. Marriott 9 Md. 160 161, 162 
 
 Baltimore v. O'Donnell 53 Md. 110 100 
 
 Baltimore Elevator Co. v. Neal (Md.) . 5 Atl. R. 338 116, 198 
 
 Baltimore, &c. R. B. Co. v. Kemp 
 
 (Md.) , 30 A. L. J. 90 218 
 
 Baltimore, &c. R. R. Co. v. Noell's 
 
 Admr. (Va.) 32 Gratt. 394 221 
 
 Baltimore & Ohio R. R. Co. v. State. 60 Md. 449 13 
 
 Barnes v. Dist. Col 91 U. S. 540 60, 73, 90, 97 
 
 Barnes v. Newton 46 Iowa, 567 105 
 
 Bartlett v. Bangor 67 Me. 460 47 
 
 Barton v. Springfield 110 Mass. 131 154 
 
 Bassett v. St Joseph 53 Mo. 290 107
 
 Table of Cases. xxxvii 
 
 Page 
 
 Baton Bouge v. Bird 21 La. An. 244 47 
 
 Bauer v. Indianapolis 99 Ind. 56 231 
 
 1 Boaudoan v. Cape Girardeau 71 Mo. 392 40 
 
 Bedford, &c. R. R. Co. v. Eaiubolt. . .99 Ind. 501 187 
 
 Benson v. Titcomb 72 Me. 31 206 
 
 Benton v. Chicago, &c. E. R. Co. . . .55 Iowa, 496 226 
 
 Berrccberg v. Boston 137 Mass. 231 197 
 
 Bigelow v. Randolph (Masi.) 14 Gray, 541 90 
 
 Bill r. Norrick 39 Conn. 222 202 
 
 Billings r. Worcester 102 Mass. 329 125 
 
 Blackman v. Gardiner Bridge 75 Me. 214 217 
 
 Blake v. Lowell (Mass.) 9 No. E. R. 627 201 
 
 Blodgett r. Boston (Mass.) 8 Allen, 231 65 
 
 Bloomingdale v. Chamberlain 104 El. 268 188 
 
 Bloomington r. Perdue 99 111. 629 231 
 
 Bohen v. Waseca 32 Minn. 176 4, 73 
 
 Bond v. Biddeford 75 Me. 538 201 
 
 Booraem v. No. H. Ey. Co 39 N. J. Eq. 465 51 
 
 Boston v. Worthington (Mass.) 10 Gray, 496 164, 167 
 
 Bovee v. Danville 53 Vt 183 206 
 
 Boyd v. Ins. Patrol of Philadelphia 
 
 (Pa.) 35 Alb. L.J. 218 96 
 
 Boyden v. Acbenbach 74 N. C. 539 44 
 
 Brakken v. Minneapolis, &c. Ey. Co. 29 Minn. 411 46, 52 
 
 Brannagau r. Dist. Col 2 Mackey, 285 84 
 
 Broburg v. Des Moines 63 Iowa, 523 158, 233 
 
 Brocson r. Smithbury 37 Conn. 199 139 
 
 Brown v. Chicago, &c. Ey. Co 64 Iowa, 652 217 
 
 Brown v. Bowdoinham 61 Me. 144 45 
 
 Brunswick v. Braxton 70 Ga. 193 117 
 
 Bunker r. Covington 69 Lad. 33 142 
 
 Buesching v. St. Louis, &c. Co 73 Mo. 219 ; 6 Mo. Ap. .78, 206 
 
 Bunch v. Edenton 90 N. C. 431 71 
 
 Burford r. Grand Eapids (Mich.) . . 18 No. W. E. 571 ; 29 
 
 A. L.J. 263 161 
 
 Burr v. Plymouth 48 Conn. 460 2 1 3 
 
 Burrill v. Augusta (Me.) 4 East. E, 615 94
 
 xxxviii Table of Cases. 
 
 Page 
 
 Burton v. Wilmington, &c. E. E. Co. 82 K C. 504 223, 224 
 
 Buttrick v. Lowell (Mass.) 1 Allen, 172 95 
 
 Calumet Iron, &c. Co. v. Martin (111.) .3 No. E. E. 456 154 
 
 Calwell v. Boone 51 Iowa, 687 161 
 
 Campbell v. Still water 32 Minn. 308 ; 34 A. L. J. 
 
 507 103, 164 
 
 Carlisle v. Brisbane (Pa.) 34 A. L. J. 507 152 
 
 Catterlin v. Frankfort 79 Ind. 547 164 
 
 Centreville v. Woods 57 Ind. 192 132 
 
 Chamberlin v. Ossipee 60 N. H. 212 155 
 
 Chapman v. Nobleboro 76 Me. 427 181 
 
 Chase v. Maine Cent. E. E. Co 77 Me. 62 209 
 
 Chicago v. Bixby 84 El. 82 135 
 
 Chicago v. Dalle 115 El. 386 122, 197 
 
 Chicago v. Fowler 60 El. 322 122 
 
 Chicago v. Hickok (El.) 17 Bradw 142 
 
 Chicago v. Hosorn (111.) 10 Bradw. 535 215 
 
 Chicago v. Eoy 75 El. 530 114 
 
 Chicago v. Keefe (111.) 32 A. L. J. 362 65 
 
 Chicago v. Kelly 69 111. 475 213 
 
 Chicago v. Langlass 52 El. 256 213 
 
 Chicago v. McCarthy 75 111. 602 119 
 
 Chicago v. McCulloch 10 El. Ap. 459 124, 225 
 
 Chicago v. McGiven 78 111. 347 112, 158 
 
 Chicago v. O'Brennan 65 111. 160 219 
 
 Chicago v. O'Brien Ill 111. 532 1C3 
 
 Chicago v. Powers 42 El. 169 2C4 
 
 Chicago v. Bobbins 2 Black, 418 8 
 
 Chicago v. Thompson 9 111. Ap. 524 45 
 
 Chicago v. Wright 69 El. 318 43 
 
 Chicago, &c. E. E Co. v. Avery 10 111. Ap. 210 214, 215 
 
 Chicago, &c. Ey. Co. v. Bayfield 37 Mich. 205 225 
 
 Chicago, &c. E. E. Co. v. Clark 108 El. 113 208, 209 
 
 Chicago, &c. Ey. Co. v. Dimick 96 111. 42 154 
 
 Chicago, &c. E. E. Co. v. Henry 7 El. Ap. 322 ; 62 El. 142. 
 
 219, 225
 
 Table of Cases. xxxix 
 
 Page 
 
 Chicago, &o. Ry. Co. v. Moranda 93 HI. 302 225 
 
 Chicago, &c. R. R. Co. v. Murray .... 71 111. 601 149 
 
 Chicago, A'c. Ry. Co. v. Payne 59 El 534 154 
 
 Chidsey v. Canton 17 Conn. 475 80 
 
 Cincinnati v. White G Peters, 431 53 
 
 Cincinnati, &c. R. R. Co. v. Butler 
 
 (Ind.) 2 No. E. R. 138 206 
 
 Circleville v. Neuding 41 OhioSt.4G5 100 
 
 Clark v, Adair County 79 Mo. 53G 90 
 
 Clark v. Elizabeth 40 N. J. L. 172 47 
 
 Clark v. Lebanon G3 Me. 393 107, 109 
 
 Cleveland, &c. R. R. Co. v. Manson. .30 Ohio St. 451 151 
 
 Cleveland, &c. R. R Co. v. Rowan. . .06 Pa. St. 30 206 
 
 Cloughessy o. Waterbury 51 Conn. 405 159, 181 
 
 Collins v. Davidson 19 Fed. R. 83 223 
 
 Collins r. South Boston R. R. Co. 
 
 (Mass.) 34 A. L. J. 292 150 
 
 Condict v. Jersey City 46 N. J. L. 157 95 
 
 Conner v. Pioneer, &c Co 29 Fed. R. 629 216 
 
 Cook v. Johnson 58 Mich. 437 143 
 
 Cook v. Milwaukee 24 Wis. 270 116 
 
 County Com'rsr. Burgess (Ind.). . . .30 A. L. J. 79 206 
 
 Covington v. Bryant (Ky.) 7 Bush, 248 89 
 
 Cramer v. Burlington 42 Iowa, 315 ; 45 Iowa, 627 • 
 
 145, 197 
 
 Crawfordsville v. Smith 79 Ind. 308 107, 109 
 
 Crete v. Childs 11 Neb. 252 156 
 
 Cromarty v. Boston 127 Mass. 329 3 
 
 Cronin v. Boston 135 Mass. 110 182 
 
 Cumberland v. Willison 50 Md. 138 96 
 
 Cusick v. Norwich 40 Conn. 375 68, 103, 129 
 
 Daily v. Worcester . . 131 Mass. 452 71 
 
 Dallas, &c. R. R. Co. v. Specker. ...59 Tex. 435; 62 Tex. 127. .14, 206 
 
 Dalton v. Salem 136 Mass. 278 L83 
 
 Daly v. Norwich, &o. R. R. Co 26 Conn. 591 151 
 
 Daniels v. Chicago, &c. R. R. Co. . . .35 Iowa, 129 49
 
 xl Table of Cases. 
 
 Page 
 Daniels v. Lebanon 58 N. H. 284 155 
 
 Dargan v. Mobile 31 Ala. 469 95 
 
 Darling v. Westmoreland 52 N. H. 401 204 
 
 Delaney v. Milwaukee 33 Wis. 67 236 
 
 Delger v. St. Paul 14 Fed. E. 567 73, 80 
 
 Delphi v. Lowery .74 Ind. 520 204 
 
 Denver v. Dunsmore 7 Col. 328 73 
 
 Detroit v. Putnam 45 Mich. 263 67, 68 
 
 Dewire v. Bailey 131 Mass. 169 Ill, 140 
 
 Dietrich v. Northampton 138 Mass. 14 14 
 
 District of Columbia v. Armes 107 U. S. 519 204 
 
 Doherty v. Waltham (Mass.) 4 Gray, 596 231 
 
 Donalson v. San Miguel Co 1 New Mex. 263 90 
 
 Donnelly v. Fall River 132 Mass. 294 182, 183 
 
 Donoho v. Vulcan Iron Works 75 Mo. 401 65 
 
 Dooley v. Meriden 44 Conn. 117 68 
 
 Dorsey v. Racine 60 Wis. 292 188 
 
 Duffy v. Dubuque 63 Iowa, 171 71 
 
 Dupree v. Cent. Pac. R. R. Co 7 Pac. R. 953 132 
 
 Dupuy v. Union 46 N J. L. 269 68 
 
 Durkee v. Cent. Pac. Ry. Co 56 Cal. 388 12 
 
 Dush v. Fitzhugh (Tenn.) 2 Lea, 307 154 
 
 Eagle Packet Co. v. Defries 94 111. 598 219 
 
 Eastman v. Meredith 36 N. H. 284 83, 90 
 
 Easton v. Neff (Pa.) 29 A. L. J. 372 84 
 
 East St. Louis v. Giblin 3 HI. App. 219 98 
 
 Eckert v. Chicago, &c. Ry. Co 30 No. W. R. 615 215 
 
 Edgerly v. Concord 59 N. H. 78, 341 94 
 
 Elgin v. Kimball. 90 LI. 356 83 
 
 Elkhart v. Ritter 66 Ind. 136 212, 214 
 
 Emporia v. Schmidling 33 Kan. 485 140, 197 
 
 Erd v. St. Paul 22 Minn. 443 201 
 
 Erie v. Magill 101 Pa. St. 616 143 
 
 Estelle v. Lake Crystal 27 Minn. 243 103, 140 
 
 Eudora v. Miller 30 Kan. 494 69 
 
 Evanston v. Gunn 99 U. S. 660 203
 
 Table of Cases. xli 
 
 Page 
 
 Fairbury v. Rogers 2 111. Ap. 96 233 
 
 Farrell v. Oldtown 69 Me. 72 7 
 
 Fassett v. Roxbury 56 Vt. 552 181, 181, 238 
 
 Faulkner v. Aurora 85 Ind. 130 ; 27 Alb. L. J. 210. 
 
 12, 161 
 
 Ferguson p. Davis County 57 Iowa, 601 36 
 
 Finegan v. Moore 46 N. J. L. 602 37. 70 
 
 Flagg v. Hudson (Mass.) 34 Alb. L. J. 79 4 
 
 Fleming v. Lockhaven (Pa.) 31 Alb. L. J. 178 4, 43 
 
 Flynn v. San Francisco, &c. R. R. Co.40 Cal. 14 132 
 
 Foil man p. Monkato (Minn.) 34 Alb. L.J. 391 152 
 
 Fopper v. Wheatland 50 Wis. 623 181 
 
 Forbes v. Balenseifer 74 HI. 183 51, 52 
 
 Fort Wayne v. Be Witt 47 Ind. 391 104 
 
 Foster v. Boston 127 Mass. 290 121 
 
 Frazer p. Lewiston 76 Me. 531 90 
 
 Freeman v. Philadelphia 13 Phila. 154 94 
 
 Freeport v. Isbell 83 111. 440; 93 111. 381 . .91, 234 
 
 French p. Phila., &c. R. R. Co 39 Md. 574 148, 206 
 
 Frick v . St. Louis, &c. Ry. Co 5 Mo. App. 435 132 
 
 Fritsch v. Alleghany 91 Pa. St. 226 5 
 
 Gagg v. Vetter 41 Ind. 228 236 
 
 Galveston v. Barbour 62 Tex. 172 221 
 
 Galveston v. Posnainsky 62 Tex. 118 107 
 
 Giblin v. Mclntyre 2 Utah, 384 215, 217 
 
 Gibson v. Johnson 4 111. Ap. 288 112, 159 
 
 Gilbert v. Boston 139 Mass. 313 110 
 
 Gilman v. Haley 7 IU. Ap. 349 218 
 
 Glassey v. Hestonville, &c. Ry. Co. 57 Pa. St. 172 152 
 
 Glantz r. South Bend (Ind.) 6 No. E. R. 632 237 
 
 Gould p. McKenna 86 Pa. St. 297 132 
 
 Gould v. Topeka 32 Kan. 485 86 
 
 Government St. R. R. Co. p. Hanlon.53 Ala. 70 119, 151 
 
 Graiber v. Derwin 43 Cal. 495 215 
 
 Grand Rapids, &c. Co. r. Jarvis ... .30 Mich. 308 192 
 
 Greenleaf p. Hlinois, &c. R. R. Co. 29 Iowa, 14 235
 
 xlii Table op Cases. 
 
 Page 
 Greenlee v. Tennessee, &c. K. E. Co . 
 
 (Tenn.) 5 Lea, 418 14 
 
 Griffin v. Williamstown 6 W. Va. 312 62 
 
 Grodin v. Des Moines 55 Iowa, 67 69 
 
 Grogan v. Worcester (Mass.) 2 East. R. 735 184 
 
 Gunz v. Chicago, &c. Ry. Co. (111.). 25 A. L. J. 36 154 
 
 Hanscom v. Boston (Mass.) 33 A. L. J. 355 128 
 
 Harkins v P. & R. R. R. Co 15 Phila. 286 14 
 
 Havana v. Biggs 58 HI. 483 60 
 
 Hayes v. Cambridge 138 Mass. 461 162 
 
 Hearn v. Chicago 20 HI. Ap. 251 123 
 
 Henderson v. Sandef ur (Ky.) 11 Bush, 550 84 
 
 Higert v. Greencastle 43 Ind. 574 4 
 
 Hill v. Boston 122 Mass. 344 83 
 
 Hill v. Fond du Lac 56 Wis. 242 105 
 
 Hiner v. Jeanpert 65 HI. 428 52 
 
 Hobson v. New Mexico, &c. Ry. Co. 
 
 (Ariz.) 11 Pac. R. 545 206 
 
 Hocum v. Weitherick 22 Minn. 152 206 
 
 Holmes v. Paris 75 Me. 559 117 
 
 Holt v. Wheatley 51 Ala. 569 187 
 
 Holton v. Daly 106 111.131; 27 A. L.J. 274. 10,222 
 
 Hopkins v. Atlantic, &c. R. R 36 N. H. 9 11 
 
 Houfei\ Fulton 29 Wis. 296 108 
 
 Houston, &c. Ry. Co. v. Boehm 57 Tex. 152 214, 215 
 
 Houston, &c. Ry. Co. v. Leslie 57 Tex. 83 218 
 
 Houston R. R. Co. v. Simpson 60 Tex. 103 149 
 
 Hoyt v. Hudson 41 Wis. 104 206 
 
 Hubbard v. Concord 35 N. H. 52. 140 
 
 Hufft-. Ames (Neb.) 30 A. L. J. 339 151 
 
 Hughes v. Baltimore Taney, 243 84 
 
 Hughes v. Muscatine, &c. Co 44 Iowa, 672 154 
 
 Huizega v. Cutler, &c. Lumber Co. .51 Mich. 272 213 
 
 Hunt v. Salem 121 Mass. 294 236 
 
 Huntingdon, &c. R. R. Co. v. Decker 84 Pa. St. 419 221, 224 
 
 Huntington v. Breen 77 Ind. 29 139, 140 
 
 Hurst v. Burnside (Or.) 8 Pac. R. 888 132
 
 Table of Cases. xliii 
 
 Page 
 
 Hussey v. Ryan (Md.) 4 East. R. 462 65, 155, 220 
 
 Hutchinson v. Concord 41 Vt. 271 161 
 
 Illinois Central R, R. Co. v. Cragin . 71 111. 177 115 
 
 Illinois Cent. R.R. Co. v. Hutchinson. 47 HI. 408 145 
 
 Indiana Car Co. v. Parker 100 lnd. 181 212 
 
 Indianapolis v. Doherty 71 lnd. 5 103, 104 
 
 Indianapolis v. Emmelman (lnd.). .35 A. L. J. 137 33 
 
 Indianapolis v. Gaston 58 lnd. 224 68, 137, 219 
 
 Indianapolis v. Scott 72 lnd. 196 129. 199 
 
 Indianapolis, &c. Ry. Co. v. Pitzer.6 No. E. R. 310 225 
 
 Ivens v. Cincinnati, &c. Co. (lnd.) . .2 No. E. R. 134 154 
 
 Jacksonville v. Drew 19 Flor. 106 102, 164, 232 
 
 James' adm'x v. Harrodsburgh (Ky.) 35 A. L. J. 380 102 
 
 Jaques v. Bridgeport Horse R. R . . . 41 Conn. 61 234 
 
 Jeffrey r. Keokuk, &c. Ry. Co 56 Iowa, 546 ; 10 No. E. R. 
 
 223 139, 141 
 
 Jochem v. Robinson (Wis.) 34 Alb. L. J. 456 7 
 
 Johnson v. Milwaukee 46 Wis. 568 105 
 
 Joliet v. Conway 17 111. App. 577 140, 219 
 
 Jjliet v. Harwood 86 111. 110 100 
 
 Joliet v. Henry 11 HI. App. 154 215 
 
 Joliet v. Seward 86 111. 402 104 
 
 Joliet v. Walker 7 111. Ap. 267 128 
 
 Kansas Pac. Ry. Co. v. Cutter 19 Kan. 83 221, 224 
 
 Karr v. Parkes 40 Cal. 188 154 
 
 Kavanaugh v. Janesville 24 Wis. 618 140 
 
 Kelley ^.Columbia (Ohio) 31 A. L. J. 379 71 
 
 Kennedy v. LeVan 23 Minn. 513 52 
 
 Kent v. Lincoln 32 Vt. 591 204 
 
 Kenworthy v. Ironton 41 Wis. 647 140 
 
 Kenyon v. Indianapolis (lnd.) 1 Wilson, 129 112, 136 
 
 Keokuk v. Independent District 53 Iowa, 352 37 
 
 Keyes r. Marcellus (Mich.) 28 A. L. J. 199 71 
 
 Keyes v. Minneapolis, &c, Ry. Co. 
 
 (Minn.) 30 No. W. R. 888 218
 
 xliv Table of Cases. 
 
 Page 
 
 King v. Thompson 87 Pa. St. 365 135 
 
 Klatt v. Milwaukee 53 Wis. 196 231 
 
 Klein r. Jewett 36 N. J. Eq. 474 214 
 
 Klein v. Thompson 19 Ohio St. 569 216 
 
 Klein r. Cent. Pac. B. E. Co 37 Cal. 400 132 
 
 Knoxville v. Bell (Tenn.) 12 Lea, 157 62 
 
 Lafayette v. Blood 40 Ind. 62 104 
 
 Lafayette v. Larson 73 Ind. 367 66 
 
 Lafayette v. Timberlake 88 Ind. 330 161 
 
 Lanark Bank v. EitemiUer 14 111. App. 22 114 
 
 Lancaster v. Kissinger (Pa.) 25 A. L. J. 454 132, 133 
 
 Langan v. Atchison 11 Pac. E. 38 ; 35 Kan. 318. 
 
 5, 140 
 
 La Salle v. Thorndike 7 111. App. 282 219 
 
 Lawrence v. Green (Cal.) 11 Pac. E, 750 154 
 
 Lemont v. Eood 18 111. App. 245 89 
 
 Lincoln v. Walker (Neb.) 30 A. L. J. 406 137, 206 
 
 Lindsey v. Danville 46 Vt. 144 11, 220 
 
 Little v. Madison 42 Wis. 643 103 
 
 Little Eock v. Willis 27 Ark. 572 83 
 
 Loan v. Boston 106 Mass. 450 237 
 
 Logansport v. Dick 70 Ind, 65 100 
 
 Logansport v. Justice 74 Ind. 378 120, 200 
 
 Lopez v. Cent. Arizona M'f 'g. Co ... 1 Ariz. 484 187 
 
 Loser v. Humphrey 41 Ohio St. 378 156 
 
 Louisville, <fcc. Canal Co. v. Murphy 
 
 (Ky .) 9 Bush, 522 152 
 
 Louisville, &o. Co. v. Gower (Tenn.). 3 So. W. E. 824 219 
 
 Louisville, &c. Ey. Co. ». Frowley 
 
 (Ind.) 9 No. E. E. 594 216 
 
 Louisville, &c. Ey. Co. v. Jones 
 
 (Ind.) 9 No. E. E. 476 218 
 
 Louisville, &c. Ey. Co. v. Shanks. . .94 Ind. 598 213 
 
 Lovenguth v. Bloomington 71 El. 238 135 
 
 Low v. Windham 75 Me. 113 184 
 
 Lowell v. Short 4 Cush. 273 164 
 
 Lowell v. Watertown (Mich.) 33 Alb. L. J. 19 140
 
 Table of Cases. xlv 
 
 Page 
 
 Luther v. Worcester 97 Mass. 268 158 
 
 Lyman v. Hampshire County 138 Mass. 74 182 
 
 Lyon v. Cambridge 136 Mass. 419 8, 91 
 
 Mack v. Salem 6 Oregon, 275 119 
 
 Macomb v. Smithers 6 111. App. 470 142 
 
 Marion County Com'rs. v. Brown . . .89 Ind. 48 139 
 
 Manchester v. Ericsson 105 U. S. 347 67 
 
 Manderschid v. Dubuque 39 Iowa, 73 51, 52 
 
 Mansfield, &c. Co. v. McEnery 91 Pa. St. 185. .. . 221, 223, 224 
 
 March v. Walker 48 Tex. 372 224 
 
 Market v. St. Louis 56 Mo. 189 129 
 
 Mauch Chunk r. Kline 100 Penn. St. 119. . 127, 158, 160 
 
 Maultby v. Leavenworth 28 Kan. 745 139 
 
 Mayhew r. Bums (Ind.) 2 No. E. K. 793 143, 225 
 
 Mayo v. Boston, &c. R. R 104 Mass. 131 206, 208, 209 
 
 McAuley v. Boston 113 Mass. 503 158 
 
 McCabe v. Cambridge 134 Mass. 484 179, 181 
 
 McCarthy v. Portland 67 Me. 167 65 
 
 McDonough v. Virginia City 6 Nev. 90 89 
 
 McDougal v. Boston 134 Mass. 149 183 
 
 McDougall v. Central Pacific R. R. 
 
 Co 63Cal. 631 206 
 
 McKenna v. St. Louis 6 Mo. Ap. 320 94 
 
 McKenzie v. Northfield 30 Minn. 456 140 
 
 McLaughlin v. Corry 77 Pa. 109 158, 214, 215 
 
 McLaury r. McGregor 54 Iowa, 717 135 
 
 McNamara v. Clintonville 62 Wis. 207 234 
 
 Mead v. New Haven 40 Conn. 72 85 
 
 Melendy v. Bradford 56 Vt. 148 L82 
 
 Merrill v. North Yarmouth (Me.) . . .4 East. R. 936 ; 3 Atl. R. .",7:.. 
 
 198, 206 
 
 Merrill v. Portland 4 Clifford C. Ct. 138 108 
 
 Messenger r. Dennic 137 Mass. 197 148 
 
 Methodist Episcopal Church v. Ho- 
 
 boken 33 N. J. L. 13 50 
 
 Michigan Cent. R, R. Co. v. Coleman . 28 Mich. 440 206 
 
 Millard v. Pinard 41 Vt, 34 238
 
 xlvi Table of Cases. 
 
 Page 
 
 Mississippi Cent. E. E. Co. v. Mason. 51 Miss. 234 132 
 
 Missouri Pacific E. E. Co. v. Lyde. .57 Tex. 505 , 219 
 
 Momence v. Kendall 14 111. Ap. 229 142 
 
 Monies v. Lynn 119 Mass. 273 121 
 
 Monmouth v. Sullivan 8 El. Ap. 50 135 
 
 Monongahela v. Fischer (Pa.) 5 East. E. 695 131 
 
 Montgomery v. Wright 72 Ala. 411 139, 141 
 
 Moore v. Minneapolis 19 Minn. 300 105 
 
 Morse v. Minnesota, &c. E. E. Co. 
 
 (Minn.) 28 A. L. J. 320 201 
 
 Moss v. Burlington 60 Iowa, 438 108 
 
 Mottt'.C. E. E. Co 70 Ga. 680 13 
 
 Mulcairns v. Jaynesville 34 Alb. L. J. 456 33 
 
 Mullen v. Eutland 55 Vt. 77 231 
 
 Murphy v. Lowell 128 Mass. 396 86 
 
 Nashville v. Brown (Tenn.) 9 Heisk. 1 101 
 
 Na3hville, &c. E. E. Co. v. Stevens 
 
 (Tenn.) 9 Heisk, 12 221, 223 
 
 Nebraska City v. Campbell 2 Black, 590 79 
 
 Needham v. San Francisco E. E. Co. 37 Cal. 400 132 
 
 New Jersey Express Co. v. Nichols. .33 N. J. L. 434 134, 208 
 
 New York v. Sheffield 4 Wall. 189 67 
 
 Niblett v. Nashville (Tenn.) 12 Heisk. 684 188 
 
 Nicholls v. Minneapolis 30 Minn. 545 73 
 
 Noble v. Eichmond (Va.) 31 Gratt. 271 187 
 
 Nones v. Northouse 46 Vt. 587 215 
 
 Noonan v. Lawrence 130 Mass. 161 183 
 
 Norfolk, &c. E. E. Co. v. Ormsby 27 Gratt. 455 151 
 
 North Vernon v. Voegler (Ind.) 2 No. E. E. 82 ; 32 Alb. L. J. 
 
 469 86, 88 
 
 Northern Pa. E. E. Co. v. Mahony. . .57 Pa. St. 187 151 
 
 Nourse v. Victory 51 Vt. 275 183 
 
 Ogle v. Pa. &c. E. E. Co. (Del.) 3 Houst. 267 52 
 
 Oil City Bridge Co. v. Jackson (Pa.) 36 Alb. L. J. 36 152 
 
 Oliver v. Kansas City 69 Mo. 79 105
 
 Table of Oases. *lvii 
 
 Page 
 
 Oliver v. La Yalle 86 Wis. 592 218 
 
 Omaha v. Olmstead 5 Neb. 446 78 
 
 O'Neil v. Detroit 50 Mich. 133 G8 
 
 O'Neill v. Chicago, &o. Ry. Co 1 McCrary C. Ct. 505 236 
 
 O'Neill r. New Orleans 22 La. An. part 1, 202 3 
 
 Opsahl r. Judd (Minn.) 27 Alb. L. J. 277 233 
 
 Orme v. Richmond 79 Ya. 8G 70 
 
 Osage City v. Brown 27 Kan. 74 139, 141 
 
 Otto v. Wolf 10G Pa. St. G08 104 
 
 Owen v. Brockschmidt 54 Mo. 285 222 
 
 Owen v. Chicago 10 111. Ap. 405 112 
 
 Pacific B. B. Co. v. Houts 12 Kan. 328 132 
 
 Paine v. Brockton 138 Mass. 504 G9 
 
 Parker v. Macon 39 Ga. 725 73 
 
 Parkhill v. Brighton 61 Iowa, 103 142, 143, 233 
 
 Parsons v. Lindsay 2G Kan. 420 
 
 Penn County, &c. v. Marion 2 No. E. R. 874 21 
 
 Pennsylvania Canal Co. v. Bentley . .GG Pa. St. 30 206 
 
 Pennsylvania B. R. Co. v. Bantour. .54 Pa. St. 495 -2-J. 
 
 Pennsylvania B. B. Co. v. Kelly 31 Pa. St. 372 12 
 
 Pennsylvania B. R. Co. r. Righter . .42 N. J. L. ISO 23 3 
 
 People v. Blake GO Cal 497 45, 46, 52 
 
 Pequignot v. Detroit 10 Fed. B. 211 68 
 
 Perkins v. Fayette G8 Me. 152 108 
 
 Phelps v. Monkato 23 Minn. 276 40 
 
 Pierce v. New Bedford 129 Muss. 534 161 
 
 Pierpoint r. Harrisville 9 W. Ya. 215 45 
 
 Pinkham v. Topsfield 104 Mass. 78 158 
 
 Pittsburgh Alley, Ex parte 104 Pa. St. 622 51 
 
 Pittstown r. Hart vS9 Pa. St. 389 109 
 
 Porter County Comm'rs v. Dombke.94 Ind. 72 122 
 
 Potter v. Castleton 53 Yt. 435 TO 
 
 Powers v. Chicago 20 111 Ap. 178 1 js 
 
 Prentiss r. Boston 112 Mass. 43 lmi 
 
 Priuce George's Co. Comm'rs p. Bur- 
 gess 63 Md. 29 140 
 
 Providence v. Clapp 17 How. (U. S.) 1G1..G8, 1.
 
 xlviii Table of Cases. 
 
 Page 
 Pullman, &c. Co. v. Bluhm 109 111. 20 156, 233 
 
 Quaife r. Chicago, &c. Ry. Co 48 Wis. 513 212 
 
 Quincy r. Barker 81 HI. 300 135 
 
 Raff erty v. Buckmaa 46 Iowa, 195 223 
 
 Railroad Co. v. Gladmon 15 Wall. 401 206 
 
 Railroad Co. v. Stout 17 Wall. 657 150 
 
 Rains v. St. Louis, &c. Ry. Co 71 Mo. 164 225, 226 
 
 Ray v. Manchester 46 N. H. 59 161 
 
 Raymond v. Lowell (Mass.) 6 Cush. 524 138 
 
 Reed v. Belfast 20 Minn. 246 90 
 
 Reed v. Chicago, &c. R. R. Co 57 Iowa, 23 215 
 
 Rice v. Evansville (lnd.) 35 Alb. L. J. 138 86 
 
 Ripon v. Bettel 30 Wis. 614 201 
 
 Bobbins v. Chicago 4 Wall. 657. 
 
 30, 33, 100, 164, 165, 16C 
 
 Roberts v. Douglass (Mass.) 2 East. R. 114 183 
 
 Robinson v. Evansville 87 lnd. 334 94 
 
 Kockford v. Hildebrand 61 HI. 155 112 
 
 Rogers v. Shirley 74 Me. 144 200 
 
 Rome v. Dodd 58 G a. 238 62, 132 
 
 Rosenberg v. Des Moines 41 Iowa, 415 114 
 
 Ross v. Thompson 78 lnd. 90 43 
 
 Rozell v. Anderson 91 lnd. 591 84 
 
 Ruggles v. Nevuda 63 Iowa, 185 197 
 
 Ruland v. So. Newmarket 59 N. H. 291 238 
 
 Rushville v. Poe 85 lnd. 83 187 
 
 Russell v. Columbia 74 Mo. 480 103 
 
 Rutter v. Missouri Pacific Ry. Co. . .81 Mo. 169 13 
 
 Salina v. Trosper 27 Kan. 544 120, 217 
 
 Sanders v. Rolston 1 Dakota, 151 206 
 
 Sargent v. Lynn 138 Mass. 599 182 
 
 Savannah v. Donnelly 71 Ga. 258 103 
 
 Savory v. Haverhill 132 Mass. 324 182, 183 
 
 Scbaefler v. Sandusky 33 Ohio St. 246 142, 143 
 
 Scheffler v. Minneapolis, &c. Ry. Co. 32 Minn. 518 223
 
 Table of Cases. xlix 
 
 Page 
 
 School District of Erie r. Fuess (Pa.) 25 Alb. L. J. 136 99 
 
 Schoonmaker v. Wilbrabam 110 Mass. 134 231 
 
 Schultz v. Chicago, &c. Ry. Co 44 Wis. 638 154 
 
 Schurtz v. Milwaukee 49 Wis. 254 161 
 
 Schwarz r. Judd 28 Minn. 371 14 
 
 Schweickkardt v. St. Louis 2 Mo. Ap. 571 119 
 
 Scott v. Montgomery 95 Pa. St. 444 214, 215 
 
 Secord v. St. Paul, &o. Ry. Co 18 Fed. R. 221 214 
 
 Selina v Perkins 68 Ala. 145 73 
 
 Shallow v. Salem 136 Mass. 136 182 
 
 Shartle v. Minneapolis 17 Minn. 308 51, 73, 80 
 
 Shaw v. Waterbury 46 Conn. 263 181 
 
 Shea v. Potrero, &c. R. R. Co 44 Cal. 614 219 
 
 Sheel v. Appleton .49 Wis. 125 124 
 
 Sheen v. Stothart 29 La. An. 630 46 
 
 Shepherd v. Chelsea (Mass.) 4 Allen, 113 161 
 
 Sherwood v. Dist. Col 3 Mackey, 276 3 
 
 Sides v. Portsmouth 59 N. H. 24 164 
 
 Siegrist v. Arnot 10 Mo. Ap. 197 154 
 
 Simon r. Atlanta (Ga.) 25 Alb. L. J. 477 7 
 
 Simons v. Gaynor 89 Ind. 165 139 
 
 Sinclair v. Baltimore 59 Md. 592 94 
 
 Slingart v. Holliday 2 HI. Ap. 45 44 
 
 Smith r. Sherwood (Mich.) 34 Alb. L. J. 119 5, 204 
 
 Smith r. Simmons (Pa.) 29 Alb. L. J. l&i- 7 
 
 Smyth v. Bangor 72 Me. 279 158 
 
 South & North Anna R. R. Co. v. Mc- 
 
 Lendon 63 Ala. 266 215, 217 
 
 Spiceland v. Alier 96 Ind. 467 187 
 
 Spooner v. Freetown 139 Mass. 235 1S-1 
 
 Stack v. Portsmouth 52 N. H. 221 70 
 
 Stafford v. Oskaloosa 64 Iowa, 251 214, 216 
 
 Stafford v. Rubens (111.) 3 No. E. It. 568 151 
 
 Stanley v. Davenport 54 Iowa, 463 5 
 
 Stanton v. Springfield 12 Allen, 566 116, 158, 194 
 
 State v. Green 41 Iowa, 693 43 
 
 State v. Tucker 36 Iowa, 485 43, l.~>, ."»1 . 60 
 
 State v. Waholz 28 Minn. 114 44 
 
 D
 
 1 Table of Cases. 
 
 Page 
 
 St. Clair St. By. Co. v. Eadie (Ohio) 32 Alb. L. J. 64 152, 153 
 
 St. Louis, &c. Ey. Co. v. Freeman. . .36 Ark. 41 226 
 
 Steele v. Boston 128 Mass. 583 161 
 
 Sterling v. Thomas 60 111. 264 73 
 
 Stevenson v. Chicago, &c. E. E. Co. .18 Fed. E. 493 154 
 
 Stewart v. New Orleans 9 La. An. 461 95 
 
 Stewart v. Eipon 38 Wis. 584 218 
 
 Stone v. Evans 32 Minn. 243 11 
 
 Street v. Holyoke 105 Mass. 82 124, 158 
 
 Street E. E. Co. v. Nolthenius 40 Ohio St. 376 187 
 
 Strong v. Stevens Point 62 Wis. 255 233 
 
 Sullivan v. Oshkosh 55 Wis. 558 236 
 
 Sullivan v. State 52 Ind. 309 45, 49, 53 
 
 Sutton v. Wauwatosa 29 Wis. 21 233 
 
 Tabor v. Graffmiller (Ind.) 9 No. E. E. 721 68 
 
 Taylor v. Worcester 130 Mass. 494 183 
 
 Teipel v. Hilsendegen 44 Mich. 461 236 
 
 Temperance Hall Ass'n v. Giles. . . .33 N. J. L. 260 231 
 
 Templeton v. Montpelier (Vt.) 30 A. l! J. 358 140 
 
 Texas, &c. Ey Co. v. Crowder 63 Tex. 502 208 
 
 Texas, &c. E. E. Co. v. Murphy 47 Tex. 356 187 
 
 Thorogood v. Bryan 8 Com. B. 115 152 
 
 Thurber v. Eailroad 60 Ind. 333 148 
 
 Toolan v. Lansing 38 Mich. 315 84 
 
 Trauter v. Sacramento 61 Cal. 271 90 
 
 Trowbridge v. Forepaugh 14 Minn. 133 38 
 
 Tuttle v. Farmiugton 58 N. H. 13 233 
 
 Tuttle v. Winchester 50 Conn. 496 181 
 
 Tyler v. Sturdy. 108 Mass. 196 60 
 
 Varney v. Manchester 58 N. H. 430 65 
 
 Varnham v. Council Bluffs 52 Iowa, 698 202, 216 
 
 Veale v. Boston 135 Mass. 187 43 
 
 Vicksburgh v. Hennessey 54 Miss. 391 135 
 
 Wadleigh v. Mt. Vernon 75 Me. 79 184 
 
 Walker v. Erie E. E. Co 63 Barb. 260 216
 
 Table of Cases. li 
 
 Page 
 Walrath >: Whittekind 26 Kan. 482 213 
 
 Walsh v. Mississippi, &c. Co 52 Mo. 434 132 
 
 Wardle v. New Orleans City R. R. Co.35 La. An. 202 214 
 
 Warner v. Holyoke 112 Mass. 332 70 
 
 Warren r. Wright 3 111. Ap. 602 112 
 
 Water Company v. Ware 10 Wall. 5G6 98 
 
 Watson r. Tripp 11 R. I. 98 101 
 
 Weisenberg v. Appleton 26 Wis. 56 214 
 
 Welch v. Portland 77 Me. 384 201 
 
 Welsh v. Rutland 56 Vt. 288 ; 30 A. L. J. 163. 
 
 83, 94 
 
 Welsh r. St. Louis 73 Mo. 71 ; 25 A. L. J. 137.102 
 
 Wentworth v. Summit 60 Wis. 281 188 
 
 Whirley v. Whiteman (Tenn.) 1 Head, 610 151 
 
 Wkitaker v. Warren 60 N. H. 20 12 
 
 White v. Chowan Co. Comm'rs 90 N. C. 437 90 
 
 White r. Stowe 54 Yt. 510 183 
 
 Wilcox v. Chicago 107 III. 334 ; 29 A. L. J. 37. ( J4 
 
 Wild v. Paterson (N. J.) 2 East. R. 808. 94 
 
 Williams v. Grand Rapids (Mich.). . .33 A. L. J. 236 8, 84 
 
 Wilson r. Atlanta 60 Ga. 473; 63 Id. 291 106 
 
 Wilson v. Charlestown (Mass.) 8 Allen, 137 136 
 
 Wilson v. Granby 47 Conn. 59 143 
 
 Wilson v. Sexon 27 Iowa, 15 112, 213 
 
 Wilson v . Trafalgar, &c. Gravel Road 
 
 Co 93 Ind. 287 139, 140 
 
 Wilson r. Wheeling 19 W. Va. 323 102, 213 
 
 Winbigler v. Los Angeles 45 Cal. 36 90 
 
 Woodcock v. Worcester 138 Mass. 268 203 
 
 Wright r. Templeton 132 Mass. 49 144 
 
 Wyandotte v. Gibson 25 Kan. 236 4 
 
 Wyandotte v. White 13 Kan. 191 180 
 
 Yeager v. Tippecanoe 81 Ind. 46 90 
 
 Young v. Dist. Col 3 MacA. 137. 71 
 
 Zettler v. Atlanta 66 Ga. 195 142
 
 CITY- NEGLIGENCE BRIEF. 
 
 PART I. 
 
 LAW. 
 
 CHAPTER I. 
 
 INTRODUCTORY. 
 
 1. Scope and limitations. 
 
 2. Sources of danger to travelers. 
 
 3. Injuries without remedy. 
 
 1. Scope and limitations of proposed subject. One who is 
 injured in person or property on the public highway 
 naturally has his attention turned to these three ques- 
 tions : 
 
 Have I a remedy ? 
 
 Against whom may I enforce it ? 
 
 How shall I proceed ? 
 
 Some examination of these questions is here proposed; 
 not, however, in detail as to every class of offenders or 
 every locality or jurisdiction. 
 
 1
 
 2 Law. 
 
 The primary subject of investigation will be the rights 
 and remedies : 
 
 of persons sustaining loss or injury, 
 by reason of wrongful or negligent mismanage- 
 ment of highways, 
 by municipal corporations, 
 in the State of New York. 
 
 To that extent only will any pretense of exhaustive 
 treatment be made. 
 
 Incidentally, however, there will also be considered to 
 some extent : 
 
 (a) The liability of persons or corporations, other 
 than the municipalities themselves, by whose fault streets 
 are rendered unsafe. 
 
 (b) The liability of quasi corporations, as counties 
 and towns, or officers thereof, on whom rest a statutory 
 obligation to keep highways safe for travel, and a statu- 
 tory liability to persons injured. 
 
 (c) The rights and remedies of travellers on highways 
 outside the State of New York. 
 
 2. Sources of danger to travellers. It is quite unneces- 
 sary to dwell on the variety of objects and occurrences 
 which may become sources of mishap upon highways, 
 and may be included within the generic terms " obstruc- 
 tion" and "defect. " 
 
 Judging from reported cases, the trenches which are 
 so frequently and necessarily opened in the streets of
 
 Introductory. 3 
 
 cities, for the purpose of laying water, gas, sewer and 
 other pipes, and the aggregation of ice and snow which 
 accompanies the northern climate, are responsible for fl 
 large share of the injuries sustained by those who use 
 the streets of cities and villages. 
 
 In addition to these, may be merely mentioned at this 
 point various others, taken at random from the reports. 
 
 (a) Actual obstructions, as 
 
 Heaps of ashes, 
 
 Ring v. Cohoes, 77 N. Y. 83. 
 
 Counter on sidewalk, 
 
 Kunz v. Troy, (N.Y. Ct. App.) 35 Alb. L. J. 232. 
 
 (b) Actual defects, as 
 
 Broken, misplaced, or uneven curb or flag-stones, 
 or pavements, holes in streets, &C. 
 
 Healy v. New York, 3 Hun, 708. 
 Saulsbury v. Ithaca, 91 N. Y 27. 
 Goodfellow v. New York, 100 N. Y. 15. 
 O'Neill v. New Orleans, 30 La. An. part 1, 202. 
 Hildreth r. Troy, 101 N.Y. 234. 
 Bullock v. New York, 99 N.Y. 654. 
 Hines r. Lockport, 50 N.Y. 236. 
 Russell v. Canastota, 98 N.Y. 496. 
 Minick v. Troy, 83 N.Y. 514. 
 
 Decayed platform over welU 1 ) or displaced(') or 
 slippery( 3 ) vault cover. 
 
 O Sherwood v. District of Columbia, 3 Mackey. -7f>. 
 (-) Smith r. New York, 15 W. Dig. 103. 
 ( 3 ) Stillwell r. New York, 49 Super. 3o0. 
 Cromarty v. Boston, 127 Mass. 329.
 
 Law. 
 
 (c) Unguarded embankments, 
 
 Flagg v. Hudson, (Mass.) 34 Alb. L. J. 279. 
 Wyandotte v. Gibson, 25 Kan. 236. 
 Atlanta v. Wilson, 59 Ga. 544. 
 Nowell v. New York, 52 Super. 382. 
 Cummins v. Syracuse, 100 N.Y. 637 
 Veeder v. Little Falls, Id. 343. 
 
 (d) Abrupt change of grade of side-walk, 
 
 Koch v. Edgewater, 14 Hun, 544. 
 Urquhart v. Ogdensburg, 97 N. Y. 238. 
 Higert v. Greencastle, 43 Ind. 574. 
 Clemence v. Auburn, 4 Hun, 386 ; 66 N. Y. 334. 
 
 (e) Objects thrown or falling from above, as 
 Ice and snow thrown from roof, 
 Atholf v. Wolf, 22 N. Y. 355. 
 
 Or falling from slide leading to ice-house, 
 
 Fleming v. Locknaven, (Pa.) 31 Alb. L. J. 178. 
 
 Falling trees, 
 
 Vosper v. New York, 49 Super. 296. 
 Gubasco v. New York, 12 Daly, 192. 
 
 Falling brick, 
 
 Kehberg v. New York, 91 N. Y. 137. 
 
 Falling awnings, 
 
 Hume v. New York, 74 N. Y. 264. 
 Bolien v. Waseca, 32 Minn. 176.
 
 Introductory. 
 
 Or bill-boards, 
 
 Langan r. Atchison, 35 Kansas, 318. 
 
 (h) Causes of fright to horses, as 
 
 Heaps of stono 
 
 Eggleston r. Columbia T. Co., 82 N. Y. 278. 
 
 Banners, 
 
 Champlin r. Penn Yan, 34 Hun, 33. 
 
 Hole in bridge, 
 
 Smith v. Sherwood, (Mich.) 34 Alb. L. J. 119. 
 
 Steam motors, 
 
 Stanley v. Davenport, 54 Iowa, 463. 
 
 Fire-works, 
 
 Conklin r. Thompson, 29 Barb. 218. 
 
 Carcass of horse, 
 
 Fritsch v. Allegheny, 91 Pa. St. 226. 
 
 For injuries arising from all these, and numberless 
 other sources of danger, municipal corporations, as well 
 as others, may, under proper circumstances, be liable 
 to those damaged thereby. 
 
 The very large class of "running-down cases " is pur- 
 posely omitted from the above enumeration ; they have
 
 6 Law. 
 
 their origin in dangers which can in no sense be called 
 obstructions or defects, and for which municipal corpora- 
 tions are not ordinarily responsible. 
 
 3. Injuries without remedy. Nor can it be useful to 
 more than call attention to the fact that many injuries 
 sustained on highways are and must be without rem- 
 edy. In addition to the many accidents which happen 
 daily, and for which no one dreams of holding any one 
 responsible, four classes of cases may be mentioned 
 under this head : Thus, 
 
 (a) The exigencies of business and building, and the 
 pleasure, convenience and even safety of the public, 
 require more or less obstruction of the streets ; and for 
 such reasonable and temporary obstruction, in absence of 
 negligence, there can be no liability. 
 
 "Necessity justifies many actions which would other- 
 wise be nuisances. No one has the right to throw wood or 
 stones in the street at his pleasure ; nevertheless, as build- 
 ing is necessary, building materials may be laid therein 
 for a reasonable time and in a convenient manner. So 
 may a merchant occupy the street with his goods ; in a 
 like manner may the common highways be temporarily 
 opened for the purpose of building vaults under them, 
 or, under like regulations, private drains may be con- 
 nected with the common sewers or gutlers, or houses and 
 other buildings with the streets, by alleys, door-steps and 
 the like. By such things as these, and many others, 
 which are justified by necessity or custom, may pub-
 
 Introductory. 7 
 
 lie highways be occupied temporarily or perma- 
 nently. " 
 
 Smith v. Simmons, (Pa.) 29 A. L. J. 109. 
 
 Of a merchant, who, for the purpose of removing mer- 
 chandise, placed a pair of skids across the side-walk to 
 the steps of his store, the court say : "The defendant had 
 the right to place the skids across the side-walk tempo- 
 rarily, for the purpose of removing the cases of merchan- 
 dise. Every one doing business along a street in a pop- 
 ulous city must have such a right, to be exercised in a 
 reasonable manner, so as not to unnecessarily encumber 
 and obstruct the side-walk. " 
 
 Welsh v. Wilson, 101 N. Y. 254. 
 
 Though whether placing skids across a walk in a 
 particular case is reasonable is for the jury to determine. 
 
 Jochem v. Eobinson, (Wis.) 34 Alb. L. J. 456. 
 
 So it has been held in Georgia, that stretching ropes 
 across a street during a firemen's parade, for the public 
 safety and convenience, is a temporary and reasonable 
 obstruction, for which a city would not be liable. 
 
 Simon v. Atlanta, (Ga.) 25 A. L. J. 477. 
 
 And in Maine, that blocks left a few hours in the street, 
 for the purpose of repairing it, are of the same class. 
 
 Farrell v. Oldtown, 69 Me. 72. 
 
 And in New York, that a stepping-stone in front of a 
 public building, for the accommodation of the public, is
 
 8 Law. 
 
 allowable, and no liability is incurred for an injury caused 
 
 by it. 
 
 Dubois v. Kingston, 102 N. Y. 219. 
 
 (b) So also, in general, all injuries are remediless 
 which are caused by objects or obstructions not wrong- 
 fully or negligently made or continued, with knowledge 
 or notice of which those having a duty to make the high- 
 way safe cannot be charged. 
 
 (c) Those, also, to which the want of care of the per- 
 son injured contributed in whole or in part. 
 
 (d) And those caused by the action of municipal cor- 
 porations, in the exercise of their judicial or discretion- 
 ary power ; for instance, 
 
 In the location and plan of streets, side-walks 
 and cross-walks, 
 
 Urquhart v. Ogdensburgh, 91 N. Y. 67. 
 Williams v. Grand Rapids, (Mich.) S3 Alb. L. J. 
 236. 
 
 Or location of street lamps. 
 
 Lyon v. Cambridge, 136 Mass. 419. 
 
 Some of the principles thus alluded to and decisions 
 cited, by way of illustration, may be considered more 
 fully hereafter.
 
 CHAPTER II. 
 
 WHO MAY SUE. 
 
 A. Person Directly Injured. 
 
 1. Kule. 
 
 2. Abatement. 
 
 B. Husband. 
 
 1. Eule. 
 
 2. Abatement. Revival. 
 
 3. Death of wife. 
 
 C. Parent. 
 
 1. Rule. 
 
 2. Adopted child. 
 
 3. Child's separate action. 
 
 D. Master. 
 
 E. Injuries resulting rN Death. 
 
 1. Generally. 
 
 2. Outside New York. 
 
 F. Injuries resulting in Death- New York. 
 
 . 1. Act of 1847. 
 
 2. Amendment of 1849. 
 
 3. Amendment of 1870. 
 
 4. Code Civ. Pro. 
 
 5. Relation of decedent to beneficiary. 
 
 6. Existence of widow or next of kin. 
 
 7. Fact of damage. 
 
 8. Abatement. 
 
 9. Extra-territorial effect. 
 
 10. Common-law right of husband or parent. 
 
 11. Bar by act of parent. 
 
 12. Bar by act of decedent. 
 
 13. Joinder of actions.
 
 10 Law. 
 
 [In this, as well as other chapters, the principles stated and illus- 
 trated apply not only to the class of actions particularly under con- 
 sideration, but to other similar actions.] 
 
 A. Person Directly Injured. 
 
 1. Rule. The person directly injured may of course seek Ms 
 remedy in the courts. 
 
 This is wholly independent of any cause of action 
 which may accrue to any one whose interest is indirect. 
 
 A former judgment in favor of the wife is not, in an 
 action by the husband, conclusive upon the question of 
 negligence. 
 
 Neeson v. Troy, 29 Hun, 173. 
 
 2. Abatement. The cause of action of the person directly 
 injured does not survive to his personal representatives. 
 
 Holton v. Daly, 106 111. 131 ; 27 Alb. L. J. 274. 
 Although it may be kept alive by prior stipulation. 
 
 Cox v. New York C. E. R. Co., 11 Hun, 621. 
 And does not abate after verdict, report or decision. 
 
 Code Civ. Pro. g 764. 
 
 B. Husband. 
 
 1. Rule. In case of personal injury to a married ivoman, 
 her husband may maintain an action for care and attendance 
 and loss of services and society. 
 
 Cregin v. Brooklyn Crosstown R.R. Co., 83 N.Y. 595. 
 Jones v. Utica & B. E. E. R. Co., 40 Hun, 349. 
 Meigs v. Buffalo, 23 Week. Dig. 497. 
 Bowen v. Borne, Id. 406.
 
 Who may Sue. 11 
 
 Groth r. Washburn, 34 Hun, 509. 
 Lynch v. Davis, 12 How. Pr. 323. 
 Philippi r. Wolff, 14 Abb. Pr. N. S. 196. 
 Hopkins v. Atlantic and St. L. P». R., 36 N. H.9. 
 Lindsey v. Danville, 46 Vt. 144. 
 Stone v. Evans, 32 Minn. 243. 
 
 2. Abatement. Revival. Though grounded in tort, the hus- 
 band's action for injury to his wife abates on hie death only as 
 to the loss of society. As to the pecuniary loss, if may he revived 
 in the name of the personal representatives, under 2 N. Y. Rev. 
 St. 447. 
 
 Cregin v. Brooklyn Crosstown R. R. Co., 83N.Y. 595. 
 
 3. Death of wife. In case the wife die as the result of 
 her injuries, there seems to be in New York some conflict 
 of authority as to the husband's common-law right of 
 action. This will be considered later. (See page 20.) 
 
 At any rate, the husband may maintain the action if 
 his wife's death was not immediate, so that he was de- 
 prived of her society and assistance even for a brief 
 period between the injury and her death. 
 
 Philippi v. Wolff, 14 Abb. Pr. N. S. 196. 
 
 C. Parent. 
 
 1. Rule. The father, or if he be not living, the mother, has an 
 action for care and attendance and loss of services caused by the 
 wrongful or negligent injury of a child. 
 
 Traver r. Eighth Ave. R. R. Co., 4 Abb. Dec. 422. 
 Gilligan v. N. Y. and Harlem R. R. Co., 1 E. D. 
 Smith, 453.
 
 12 Law. 
 
 Whitaker v. Warren, 60 N. H. 20. 
 Pennsylvania E. E. Co. v. Kelly, 31 Penn. St. 372. 
 Faulkner v. Aurora, (Indiana) 27 Alb. L. J. 210. 
 Durkee v. Cent. Pac. E. E. Co., 56 Cal. 388. 
 
 2. Adopted child. In Whitaker v. Warren the child was 
 that of the plaintiff only by adoption, and that not legal. 
 
 3. Child's separate action. In Traver v. Eighth Ave. K. R. 
 Co., held, that the child might also recover for any expense 
 and inability to work if it extended beyond his minority. 
 
 D. Master. 
 
 " It is a general principle that an action lies for an 
 injury done to his slave, servant, apprentice, ... in favor 
 of the person who stands in place of a parent, by reason 
 of which he has sustained a loss of service, or been put to 
 expense in nursing or providing medicines." 
 
 Woodward v. Washburn, 3 Denio, 369, at p. 371. 
 
 This case was one for imprisonment of a hired servant. 
 It is cited as authoritative in McMullen v. Hoyt, 2 
 Daly, at page 275. The rule, as above quoted, is compre- 
 hensive in its terms, and seems to be laid down as well- 
 settled law. 
 
 E. Injuries Resulting in Death. 
 
 1. Generally. At common law, the right to maintain an action 
 for personal injuries died with the person. 
 
 Oldfield v. N. Y. & H. E. E. Co., 14 N. Y. 310, at 
 
 p. 316. 
 Whitford v. Panama E. E. Co., 23 N. Y 465, at p. 476.
 
 Injuries resulting in Death. 13 
 
 In case the injuries result in death, there is in probably 
 every State and jurisdiction a statutory cause of action 
 accruing to some person or class of persons. These statutes 
 differ in many particulars, but chiefly in prescribing v. Ik. 
 may bring the action ; in some the right being giving to 
 the personal representative for the benefit of specified 
 persons, in others directly to the next of kin or other 
 beneficiary. 
 
 2. Outside New York. No attempt will be made to 
 examine or classify these different statutes. It may be 
 noticed, however, by way of illustration, that in the fol- 
 lowing States the action must be brought by the personal 
 representative, viz.: Massachusetts, Minnesota, Nebraska, 
 Oregon. While in the following States the action accrues 
 directly to the persons beneficially interested, viz.: Cali- 
 fornia, Georgia, Illinois, Maryland, Missouri, Pennsyl- 
 vania, Tennessee, Texas. 
 
 Under the statutes of different States the following 
 adjudications may be of interest and use. 
 
 In Maryland, where the child has a cause of action for 
 
 the death of the parent, held, that an adult child may 
 
 recover. 
 
 ' B. & O. R. R. Co. v. State, 60 Md. 449. 
 
 Contra, in Georgia. 
 
 Mott v. Central R. R. Co., 70 Ga. 680. 
 
 In Missouri, where minor children may sue within a 
 year, held, that the child may sue within the year, though 
 he have meantime become of age. 
 
 Rutter v. Mo. Pac. Rj. Co., 81 Mo., 169.
 
 14 Law. 
 
 In Tennessee, where the widow may sue for her child- 
 ren and herself, held, that she may discontinue the action 
 against the objection of her children. 
 
 Greenlee v. Tenn., &c. R. R. Co., 5 Lea, 418. 
 
 In Texas, that a widow may sue, though she had lived 
 separate from her husband. 
 
 Dallas, &c. R. R. Co. v. Spicker, 59 Tex. 435. 
 
 In Pennsylvania, where the parent may recover for 
 the loss of a child, held, that the mother of an illegiti- 
 mate child is not its parent within the statute. 
 
 Harkins v. Philadelphia & Reading R. R. Co., 15 
 Phila. 286. 
 
 In Massachusetts, in a case where a pregnant woman 
 fell and was delivered of a child, which survived but a 
 few minutes, held, that the child was not a person, so that 
 an action would lie for its death. 
 
 Dietrich v. Northampton, 138 Mass. 14. 
 
 In Minnesota, where the action is by the representa- 
 tive, for the benefit of the widow and next of kin, held, 
 that the complaint must allege the existence of a widow 
 
 or next of kin. 
 
 Schwarz v. Judd, 28 Minn. 371. 
 
 F. Injuries resulting in Death; New York. 
 
 1. Act of 1847. The first enactment upon this subject is 
 found in Session Laws of 1847, chapter 450, and reads as 
 follows :
 
 Injuries resulting in Death. 15 
 
 " § 1. Whenever the death of a person shall be caused 
 by wrongful act, neglect or default, and the act, neglect 
 or default is such as would (if death had Dot ensued) have 
 entitled the party injured to maintain an action and 
 recover damages in respect thereof, then, and in every 
 such case, the person who or the corporation which would 
 have been liable if death had not ensued, Bhall be liable 
 to an action for damages, notwithstanding the death of 
 the person injured, and although the death shall have 
 been caused under such circumstances as amount in law 
 to felony. 
 
 "§2. Every such action shall bo brought by and in 
 the name of the personal representatives of such deceased 
 person, and the amount recovered in every such action shall 
 be for the exclusive benefit of the widow r and next of kin 
 of such deceased person, and shall be distributed to such 
 widow and next of kin in the proportions provided by 
 law in relation to the distribution of personal property 
 left by persons dying intestate ; and in every such action 
 the jury may give such damages as they shall deem fair 
 and just, with reference to the pecuniary injury resulting 
 from such death, to the wife and next of kin of such 
 deceased, person; provided, that every such action shall 
 be commenced within two years after the death of such 
 deceased person. 
 
 " § 3. This act shall take effect immediately. " 
 
 2. Amendment of 1849. By chapter 256, Laws of 18 19, 
 this statute was amended in three important particulars : 
 
 First, so as to restrict the amount of damages to five 
 thousand dollars.
 
 16 Law. 
 
 Second, limiting the effect of the statute to suits 
 and proceedings thereafter to be commenced. 
 
 Third, providing for the indictment and punishment 
 of an agent or employee through whose wrongful act, 
 neglect or default the death was caused. 
 
 3. Amendment of 1870. By chapter 78, Laws of 1870, 
 two other important amendments were added : 
 
 First, adding the husband to the list of beneficiaries. 
 
 Second, providing that upon entry of judgment, inter- 
 est be added to the amount of damages recovered, to be 
 computed from the time of death. 
 
 It may be observed here, that prior to this amend- 
 ment, it had been decided in several cases that the hus- 
 band was not embraced within the description of next of 
 kin of the wife, and was therefore entitled to no part of 
 the recovery. 
 
 Lucas v. New York C. B. K. Co., 21 Barb. 245. 
 Dickens v. N. Y. Central R R. Co , 23 N. Y. 158. 
 Drake v. Gilmore, 52 N. Y. 389. 
 
 The last case was decided in 1873, but the cause of 
 action had accrued prior to the amendment of 1870. 
 
 4. Code Civ. Pro. Sections 1902-1905 of the Code 
 contain the present law upon the subject. 
 
 " § 1902. The executor or administrator of a decedent, 
 who has left him or her surviving, a husband, wife or next 
 of kin, may maintain an action to recover damages for a
 
 Injuries resulting in Death. 17 
 
 wrongful act, neglect or default, by which the decedent's 
 death was caused, against a natural person who, or a cor- 
 poration which, would have been liable to an action in 
 favor of the decedent, by reason thereof, if death had not 
 ensued. Such an action must be commenced within two 
 years after the decedent's death. 
 
 " § 1903. The damages recovered, in an action brought 
 as prescribed in the last section, are exclusively for the 
 benefit of the decedent's husband or wife, and next of 
 kin, and when they are collected they must bo distrib- 
 uted by the plaintiff as if they were unbequeathed assets 
 left in his hands after payment of all debts and expenses 
 of administration. But the plaintiff may deduct there- 
 from the expenses of the action, and his commissions 
 upon the residue ; which must be allowed by the surro- 
 gate, upon notice, given in such a manner and to such per- 
 sons, as the surrogate deems proper. 
 
 " § 1901. The damages awarded to the plaintiff may 
 be such a sum, not exceeding five thousand dollars, as the 
 jury, upon a writ of inquiry, or upon a trial, or where 
 issues of fact are tried without a jury, the court or the 
 referee, deems to be a fair and just compensation for the 
 pecuniary injuries resulting, from the decedent's death, to 
 the person or persons for whose benefit the action is 
 brought. When final judgment for the plaintiff is ren- 
 dered, the clerk must add to the sum so awarded, inter- 
 est thereupon from the decedent's death, and include it in 
 the judgment. The inquisition, verdict, report or decis- 
 ion may specify the day from which interest is to be com- 
 puted ; if it omits to do so, the day may be determined 
 by the clerk upon affidavits. 
 2
 
 38 Law. 
 
 " § 1905. The term 'next of kin, ' as used in the fore- 
 going sections, has the meaning specified in section 1870 
 of this aci " 
 
 " § 1870. The term ' next of kin, ' as used in this 
 title, includes all those entitled, under the provisions of 
 of law relating to the distribution of personal property, 
 to share in the unbequeathed assets of a decedent, after 
 payment of debts and expenses, other than a surviving 
 husband or wife." 
 
 It will be observed that the Code contains all the pro- 
 visions of the old act as amended in 1870, except that for 
 a criminal proceeding against the agent or employee, and 
 contains nothing new except certain details and directions 
 for practice. 
 
 Under this statutory provision, in its various forms, 
 the following principles seem to have been settled by 
 adjudication. 
 
 5. Relation of decedent to beneficiary. The statute gives an 
 action to the personal representatives, whenever the decedent, if 
 living, might himself have maintained an action; the person killed 
 need not have been a husband, father or protector. 
 
 Quin v. Moore, 15 N. Y. 432. 
 
 Keller v. N. Y. C. R. R. Co., 7 How. Pr. 102. 
 
 " Although," the court says, in Quin v. Moore, " the 
 legislature, in passing the act, were doubtless influenced 
 by the evident justice of compelling the wrong-doer to 
 compensate families dependent, in a greater or less degree, 
 for support, on the life of the deceased."
 
 Injuries resulting in Death. 19 
 
 6. Existence of widow, or next of kin. Nor is it necessary to 
 prove tlie existence of a widow or next of kin. 
 
 Oldfield r. N. Y. & Harlem It. R. Co., 14 N.Y. 310. 
 
 Quin v. Moore, 15 N. Y. 432. 
 
 Tilley v. Hudson River R. R. Co., 24 N. Y. 471. 
 
 McMahon v. New York, 33 N. Y. 012. 
 
 Dickens v. N. Y. C. R. R. Co., 28 Barb. 41. 
 
 7. Fact of damages. Nor is it necessary to prove any pecu- 
 niary, or special damage. 
 
 Oldfield v. N. Y. & Harlem R. R. Co., 14 N. Y. 310. 
 Keller v. N. Y. C. R. R. Co., 2 Abb. Dec. 480. 
 
 8. Abatement. The action abates on the death of the wrong- 
 doer, and cannot be revived against his personal representaiivs. 
 (Overruling Yertore v. Wiswall, 16 How. Pr. 8.) 
 
 Hegerich v. Keddie, 99 N. Y. 258. 
 
 9. Extra-territorial effect. The statute has no extra-terri- 
 torial effect, so if the injury occurred in another State, th n 
 be no action liere, unless it appear that a statute similar to ours 
 exists there. 
 
 Debevoise v. N. Y., L. E. & W. R. R. Co., 98 N. Y. 
 
 377. 
 Mahler v. Norwich & N. Y. Trans. Co., 35 N. Y. 352. 
 Beach v. Bay State Co., 10 Abb. Br. 71 ; 30 Barb 
 Whitford r. Panama R. R. Co., 23 N. Y. 405. 
 McDonald v. Mallory, 7 Abb. N. C. 84 ; 77 N. Y. 54G. 
 Crowley v. Tanama R. R. Co., 30 Barb. 99. 
 Vandeventer v. N. Y. A N. H. R. R. Co., 27 Barb. 2 1 1 
 
 But may where it appears that the laws of that S; 
 are similar to those of this State, giving to the |
 
 20 Law. 
 
 representatives a right of action in such cases ; it is not 
 essential that the statute should be precisely the same. 
 
 Leonard v. Columbia Steam Nav. Co., 84 N. Y. 4B. 
 
 10. Common-law right of husband or parent. "Whether or 
 not a father who has been deprived of the services of his 
 child, or a husband who has lost the society and assist- 
 ance of his wife, by acts of culpable negligence on the part 
 of others, by means of which death has ensued, may not 
 respectively maintain actions against the wrong-doer, to 
 recover damages for such injury, is a question as to which 
 the decisions are at variance ; one line of authorities hold- 
 ing that there is no cause of action but the statutory one 
 in case of death, the other, that there is a common-law 
 right of recovery. 
 
 (a.) In Ford v. Monroe, 20 Wend. 210, a child having 
 been run over and killed, the father was held " entitled 
 to recover such sum by way of damages as the services of 
 the child would have been worth to him, until he became 
 twenty-one years of age." This case was decided in 1838. 
 
 (b.) In Lynch v. Davis, 12 How. Pr. 323, Eensselaer 
 special term, 1855, it was held that an action could not be 
 sustained under the act of 18 17 by a plaintiff, as adminis- 
 trator of the deceased wife, for injures resulting from mal- 
 practice ; that the right of action vested in him as husband. 
 
 The court say : "The common-law gave the husband, 
 and the father, a right to recover of the wrong-doer the 
 pecuniary injury he had sustained by reason of the killing 
 of his wife or child."
 
 Injuries resulting in Death. 21 
 
 (c.) In Green v. Hudson It. R. R. Co., 28 Barb. 9, 
 Oneida special term, 1858, affirmed at general term on 
 same opinion, the opposite ground is taken, the court 
 holding that no such action will lie, and supposing " the 
 question has been too long settled in England and in 
 this country to be disturbed, and that it would s 
 somewhat more of judicial knight-errantry than of legal 
 prudence to attempt to unsettle what has been deemed 
 at rest for more than two hundred and fifty years." Of 
 Ford v. Monroe, the court say: "The case is certainly 
 anomalous, sustained by no precedent, and in plain con- 
 flict with all previous authority." 
 
 (d.) In Whitford v. Panama R. R. Co, 23 N.Y. 465 (1861), 
 this question was suggested, but the court say : " 
 present action does not in any way involve that con- 
 troversy, and as the case just referred to (Green v. H R. 
 R. R. Co.), is understood to be pending in this court on 
 appeal, it is intended carefully to abstain from the esj 
 sion of any opinion upon it." 
 
 (e.) In I860 the Green case was affirmed by the court of 
 appeals (2 Keyes, 294; 2 Abb. Dec. 277), the court paying 
 its respects to both Ford v. Monroe and Lynch v. Davis. 
 The particular point decided in the Green case was th it 
 a husband could not maintain an action for the instantan- 
 eous killing of his wife through the negligence of another. 
 The same had been held in 1855, in Lucas y. N. Y. C. R 
 R. Co, 21 Barb. 243. 
 
 (f.) In McGovern r. N.Y. C. & H. R R 11. Co, 67 N.Y. 
 417, decided in 1876, the court was expressly non-com- 
 mittal upon this point, which was not necessary to its
 
 22 Law. 
 
 decision, although the language of the opinion leads to the 
 inference that its attention was not called to the Green 
 case. The action was brought by a father as administrator 
 of his minor son. The question arose upon an exception 
 to the refusal of the trial judge to charge " that inasmuch 
 as the father is entitled to the services of his son until he 
 becomes of age, the earnings, which he might have made 
 during his minority, are not to be considered." The 
 court said : " Assuming, as seems to have been held in 
 Ford v. Monroe, that a father can recover damages for the 
 loss of service of his minor son, against a person who 
 negligently caused his death, to be computed and ascer- 
 tained from the time of his death, until the time when 
 the son, if living, would have attained his majority, the 
 question arises whether, in an action brought by the 
 father, as administrator, under the statute, the entire 
 damages may be recovered, including the loss of 
 service, when, as in this case, the father elects to proceed 
 for and claim his whole damages in the statutory action, 
 and the recovery is for his exclusive benefit. 
 
 " We are inclined to the opinion that in such a case 
 damages for the loss of service znay be included in the 
 recovery as a part of the pecuniary loss to the next of kin 
 of the deceased, resulting from his death, and that a 
 recovery will bar another action for the same damages by 
 the father as such. . . . 
 
 " We confine our opinion to the precise case presented, 
 assuming, on the authority of Ford v. Monroe, that the 
 father has a right of action, independent of the statutes, 
 for loss of service." 
 
 (g.) In Stuebing v. Marshall, 2 Civ. Pro. Kep. 77, K 
 Y. Common Pleas, General Term, the court carefully say :
 
 Injuries resulting in Death. 23 
 
 " It is said that the father had a cause of action at com- 
 mon law, in addition to the cause of action created by the 
 statute." But the point at issue was as to the effect of 
 the father's release of all claims upon his cause of action 
 as administrator, and the McGovern case is cited upon 
 the precise point decided by it. 
 
 11. Bar by act of parent. If the father be the sole beneficiary 
 under the statute, a release by him will bar an action under the 
 statut:. 
 
 Stuebing v. Marshall, 2 Civ. Pro. R. 77. 
 
 12. Bar by act of decedent. If the wrong-doer settled icith 
 the deceased in his lifetime, and paid him the amount (f his 
 claim on account of tJie injury, (') or if the decedent brought 
 suit and recovered damages for the injury in his lifetime^ ( a ) 
 the personal representatives cannot maintain an action 
 
 (') Dibble v. N. Y. & Erie By. Co., 25 Barb. 1S3. 
 
 (Twice argued in Court of Appeals, but nover 
 
 decided. 21 How. Pr. 593 2:3 Id. 599.) 
 ( ! ) Littlewood v. New York, 89 N. Y. 24. 
 
 (Overruling Schlicbting v. Wintgen, 25 Hun, 
 
 626.) 
 
 The court in this case, speaking of the Dibble case, 
 say : " The decision of the Supreme Court cannot, in the 
 light of subsequent cases, be sustained on the ground that 
 the representative suing under the statute merely suc- 
 ceeded to the right of action of the deceased, and was, for 
 that reason, barred by his release. But on the ground that 
 the statute was not intended to subject the defendant to 
 an action, where he had made compensation to the 
 deceased in his lifetime, and would not have been liable
 
 24 Law. 
 
 if tho deceased had not died, I think the conclusion was 
 correct." 
 
 13. Joinder of actions. A person who is the administrator 
 of the estates of two persons killed by the same accident, cannot 
 join the two grievances in one action. 
 
 Danaher v. Brooklyn, 4 Civ. Pro. K. 286.
 
 CHAPTER III. 
 
 GROUNDS OF LIABILITY. WHOM TO SUE. 
 
 A. Grounds of Liability. 
 
 First. Nuisance. 
 
 1. Rule. 
 
 2. Creator out of possession. 
 
 3. Maintainor of nuisance. 
 
 4. Knowledge. 
 
 5. Ignorance as an excuse. 
 
 6. Non-user as an excuse. 
 
 7. License, generally. 
 
 8. Effect of license. 
 
 9. Degree of care under license. 
 Second. X<><jU<jence. 
 
 10. Negligent act. 
 
 11. Neglect of duty. 
 
 B. "Whom to sue. 
 
 1. Principal. 
 
 2. Owner for fault of contractor. 
 
 3. Officers. 
 
 4. Agents and servants. 
 
 5. Contractors. 
 
 6. Abutting owners. 
 
 7. Concurrent liability. 
 
 A. Grounds of Liability. 
 
 The liability for defects or obstructions in highways 
 may be said to be grounded in either (1) nuisance, cm - 
 negligence. It should, perhaps, be added, that both of 
 
 these may concur in a given c 
 
 [25J
 
 26 Law. 
 
 Fiest. Nuisance. 
 
 1. Rule. He 10I10, without license or lawful authority, cre- 
 ates or maintains a dangerous obstruction in a public street, 
 creates or maintains a nuisance, and is liable to persons injured 
 thereby, irrespective of negligence or care. 
 
 Hart v. New York, 9 Wend. 571. 
 
 Dygert v. Schenck, 23 Id. 446. 
 
 Brown v. Cayuga & S. R. R. Co., 12 N. Y. 486. 
 
 Congreve v. Smith, 18 N. Y. 79. 
 
 Congreve v. Morgan, 18 N. Y. 84. 
 
 Creed v. Hartmann, 29 N. Y. 591. 
 
 Irvine v. Wood, 51 N. Y. 224. 
 
 Baxter v. Warner, 6 Hun, 585. 
 
 Clifford v. Dam, 81 N. Y. 52. 
 
 Woram v. Noble, 41 Hun, 398. 
 
 2. Creator. The above rule is, however, subject to 
 the following : 
 
 To charge one who has created a nuisance with liability for 
 its continuance, after he has parted with the property upon 
 which it is situated or caused, he must be shoivn to derive some 
 benefit from the continuance, as by demising the premises and 
 receiving rent ; or to have sold with warranty of the con- 
 tinued use of the property, as enjoyed while the nuisance 
 existed, with covenants for the continuance of the nuisance. 
 
 Hanse v . Cowing, 1 Lans. 288. 
 People v. Livingston, 27 Hun, 105. 
 
 3. Maintainer. A maintainer of a nuisance is a person 
 
 deriving benefit from it, with knowledge of its existence. He 
 
 may be the owner, (*) either occupying or receiving rent, or a 
 
 tenant. ( 2 ) 
 
 (') Irvine v. Wood, 51 N. Y. 224. 
 
 Anderson v. Dickie, 26 How. Pr. 105.
 
 Grounds of Liability. 27 
 
 Walsh v. Mead, 8 Hun, 387. 
 Edwards r. N. Y. A H. R. R. Co., 98 N. Y. 245. 
 Swords v. Edgar, 59 N. Y. 28. 
 Davenport v. Ruckman, 37 N. Y. 5C8. 
 McGuiro v. Spepoe, 91 N. Y. 303. 
 Congreve v. Smith, 18 N. Y. 79. 
 Congrevo v. Morgan, Id. 84. 
 (a) Wasmer v. D., L. & W. R R. Co., 80 N. Y. 212. 
 Swords r. Edgar, supra. 
 Irvine v. Wood, 51 N.Y. 224. 
 Edwards v. N. Y. & H. R. R. Co., supra. 
 Brown v. Cayuga & Susq. R. R. Co., 12 N.Y. 482. 
 
 In Swords v. Edgar the rule was laid down that where 
 premises are affected by the nuisance at the time of the 
 letting, the lessor is liable. 
 
 And in Walsh v. Mead, that this is so, even though the 
 negligence of the tenant contributed to the injury. 
 
 This is subject to principles stated below, particularly 
 the consideration of knowledge by the owner. 
 
 4. Knowledge. He who knowingly maintains a nuisance 
 is as responsible there/or as he who creates it. 
 
 Davenport r. Ruckman, 37 N.Y. 568. 
 
 Wasmer v. D., L. k W. R. R. Co., 80 N. Y. 212. 
 
 Brown v. Cayuga & S. R. R. Co., 12 N. Y. 486. 
 
 (a) Actual knowledge need not he proven ; it may be 
 implied from circumstances. 
 
 Irvine v. Wood, supra. 
 
 " It was near their store, in plain view, and it was 
 
 carelessness for thorn to occupy the store for months, and 
 
 to use the hole, which, if not properly covered, was dan- 
 
 i gerous to travelers, and not examine into and know its
 
 28 Law. 
 
 condition. It was their duty to know its condition, and 
 they must be held to the same responsibility as if they 
 had actually known it." 
 
 5. Ignorance. Actual ignorance of the nuisance may, under 
 certain circumstances, relieve from liability. 
 
 (a) Thus, where the owner did not create the nuis- 
 ance, and purchased the premises subject to a lease, and 
 the tenant was required to make all repairs, and the owner 
 was ignorant of the defect, he was held not liable. 
 
 Woram v. Noble, 41 Hun, 398. 
 
 The court say : " To impose liability upon the defend- 
 ant for the disaster that befell the plaintiff, would be to 
 hold him responsible for the nuisance, when he had no 
 agency in its creation, was without knowledge of its 
 existence, derived no benefit from its continuance, and was 
 destitute of authority for its abatement. Being innocent 
 of everything but the ownership of the reversion at the 
 time of the accident, no rule of justice requires a visita- 
 tion of the consequences of the accident on the defendant, 
 and nothing but a severe rule of law will justify a decision 
 producing such a result. Our examination discloses no 
 such rule." 
 
 It will be observed that the expression " derived no 
 benefit from its continuance," as applied in this case, 
 seems at variance with the usually recognized rule that 
 the receiving of rent is a benefit so as to charge the land- 
 lord with the nuisance, provided he had knowledge of it.
 
 Grounds of Liability. 29 
 
 Perhaps, however, it should be considered in connec- 
 tion with the principle laid down in Clancy v. By 
 i: fro, where the court say : " If a landlord let premises, 
 not in themselves a nuisance, and it is entirely at the 
 option of the tenant to so use them or not that they shall 
 not become so, and the landlord will receive the same h 
 if they be not so used, the landlord is not responsible if, by 
 the careless use by the tenant, they become a nuisance." 
 
 (b) So where the nuisance did not exist at the time of 
 the letting, but arose from the manner in which the lessee 
 used the premises, (') or was occasioned by the wrongful 
 act of a stranger, ( 2 ) and the owner was unaware of the 
 danger^ he is not liable. 
 
 (') Evan v. Wilson, 87 N. Y. 471. 
 Clancy v. Byrne, 5G N. Y. 129. 
 ( 2 ) Wolf v. Kilpatrick, 101 N. Y. 146. 
 
 The first was the case of a building containing a revolv- 
 ing shaft, and the tenant placed a partition so near the 
 shaft that it became dangerous to pass between, hence 
 the injury. 
 
 In the case last cited, the injury was caused by the 
 breaking by a stranger of a stone supporting the iron 
 cover of a properly constiucted coal-hole. 
 
 6. User. Where a person acquires till'- t<> land upon which 
 is a nuisance, the mere omission to abate or n mow it does not 
 render him liable ; actual use must be shown, or <> request to 
 abate. 
 
 Wenzlick r. McCottor, 87 N. Y. 122.
 
 30 Law. 
 
 In that case, two houses had been built with a common 
 leader from the two roofs, which was upon the defendant's 
 house. The defendant purchased the house in that con- 
 dition, and changed the conductors so that the water from 
 that house no longer ran in the common leader, though 
 the leader still remained on his house. The obstruction 
 was ice, formed from water from the leader, coming, of 
 course, from the roof of the adjacent house. The owner 
 was held not liable. 
 
 7. License, generally. The general rule as to nuisance (§ 1, 
 above) is subject to the power usually given by charter to muni- 
 cipal corporations to make, or expressly or impliedly to license, 
 temporary obstructions or excavations for the making and 
 repairing of streets, the 'protection or convenience of the public , 
 for laying pipes, for building, for the requirements of trade, for 
 the convenient enjoyment of abutting buildings, or otherwise. 
 
 Behberg v. New York, 91 N. Y. 137, 143. 
 
 Nolan v. King, 97 N. Y. 565. 
 
 See also cases cited in chap. I. \ 3. 
 
 And such license may be implied from the knowledge 
 of and absence of objection by the municipal authorities. 
 
 Bobbins v. Chicago, 4 Wall. 657. 
 
 8. Effects of license. A license or permit from the proper 
 authority changes the character of the liability from that for a 
 nuisance to one for negligence or want of proper care. 
 
 Irvine v. Wood, 51 N. Y. 224. 
 
 Wolf v. Kilpatrick, 101 N. Y. 146. 
 
 Clifford v. Dam, 81 N. Y. 52. 
 
 Mairs v. Manhattan Asn., 89 N. Y. 498.
 
 Grounds of Liability. 31 
 
 N..lan r. Kinp, 97 N. V 
 
 Brusso v. Buffalo, 90 N V. I 
 
 McCamus r. Citizens' Gas-light Co., 40 Barb. 380. 
 
 Blake v. Ferris, 5 N. Y. 48. 
 
 In Irvine v. "Wood, thero was no license, but in the 
 course of the opinion the court say: " Even if this hole 
 was excavated in the street by permission of competent 
 authority, the persons who originally excavated it were 
 bound to do it in a careful manner, and to see that it was 
 properly and carefully covered, so as not to be perilous 
 to travelers upon the street. They could get from the 
 authorities no license for carelessness. For in such case the 
 city itself would be liable for the carelessness of its offi- 
 cers (Barton v. Syracuse, 36 N. Y. 54). And this liability 
 attached not only to those who made the excavation, but 
 to those who continued and used it in its improper and 
 unsafe condition." 
 
 In Clifford v. Dam, it was proposed to prove a license 
 which had not been pleaded. The court excluded the 
 proposed evidence, and said : " If a permit was material, 
 the effect of it would only be to mitigate the act from ail 
 absolute nuisance to an act requiring care in the const ru •- 
 tion and maintenance ; and to justify such a structure, it 
 would be necessary not only to plead it, but also to allege 
 and prove a compliance with its terms, and that the struc- 
 ture was properly made and maintained to secure the > 
 safety to the public that th* sidt walk wo\ HI 
 Old it. When permission is given by a municipal author- 
 ity to interfere with a street solely for private us.' and 
 convenience, and in no way connected with the public use, 
 the person obtaining such permission must see to it that, 
 the street is restored to its original safety and usefulness."
 
 32 Law - 
 
 9. Modification of above. The Court of Appeals have 
 found it necessary in a late case to explain and somewhat 
 modify the force of the expression above italicized, quoted 
 from the opinion in Clifford v. Dam. 
 
 In Nolan v. King, 97 N. Y. 565, the obstruction con- 
 sisted of a temporary bridge made over an excavation, for 
 which a permit had been given. The trial justice charged 
 to the full extent of the language of Clifford v. Dam, that 
 " the defendant was under a liability to have the bridge 
 constructed in such a manner that the plaintiff would not 
 be subjected to any more personal risk than if the side- 
 walk had been there instead of the bridge." The Court 
 of Appeals, commenting on this, say of the decision in 
 Clifford v. Dam : " There a vault was built with an open- 
 ing in the sidewalk to receive coal ; but the cover to the 
 opening, intended to remain there permanently, and to 
 constitute a part of the sidewalk, was so imperfectly con- 
 structed that it gave way, and injury followed. We said 
 that the builder was bound to make the sidewalk as safe 
 as it was before excavated. But we did not say that he 
 was bound to do that during the progress of construction. 
 In the present case, the builder was required to restore 
 the sidewalk which he had excavated to its original safe 
 condition ; but that is not saying he must keep it so dur- 
 ing the progress of construction. That process implies 
 and compels a temporary removal of the sidewalk, and 
 either it must be left impassable, and guarded and pro- 
 tected as an excavation, or bridged above the sidewalk 
 level so that the work of building or restoration can go on 
 beneath it, and without obstruction to the public travel." 
 And again : "In all such cases it is inevitable that the 
 passage of the public, temporarily, is made less conveni-
 
 Grounds of Liability. 33 
 
 ent and not so perfectly safe, as before the removal of the 
 sidewalk; but if this is done with prudence and care, with 
 good judgment, and properly and attentively, so us not 
 to be perilous to passengers in the street, the builder is 
 not responsible for an accident. The rule applied upon 
 the trial of this case would tend to make impossible any 
 temporary occupation of the street by builders during the 
 process of construction." 
 
 Second. Negligence. 
 
 The cases in which the liability is founded on negli- 
 gence may be arranged in two classes : first, where the 
 negligence is in the performance of an act ; aeoond t where 
 it consists of the neglect of a duty. 
 
 1). Negligent act. He 10I10 negligently creates ogr main- 
 tains an obstruction in a public street, is liable to pert 
 injured thereby, irrespective of authority or license. 
 
 Sexton v. Zett, 56 Barb. 119. 44 N. Y. 430. 
 Bliss v. Schaub, 48 Id 339. 
 Steivermann v. White, 48 Super. 523. 
 Dixon v. Brooklyn City & N. K. R. Co., 100 N. V 
 170. (See also cases cited under i.i. 7, 8, supra.) 
 Mairs v. Manhattan Beal Estate Ass'n., 89 N. Y. 498. 
 Bobbins v. Chicago, 4 Wall. 657. 
 Mulcairns r. Jaynesville, 34 Alb. L. J. 156. 
 Indianapolis r. Eninielman, (Ind.) 35 Alb. L. J. 
 137. 
 
 The two cases last cited are examples of tlmsc in 
 which a municipal corporation itself caused the obstruc- 
 tion. 
 3
 
 34 Law. 
 
 11. Neglect of duty. The person who, or corporation tvhich, 
 
 having imposed upon it the duty of keeping the streets safe for 
 
 travel, is negligent in the performance of that duty, is liable to 
 
 the person injured by a neglect, or omission, to properly perform 
 
 such duty. 
 
 Bennett v. Whitney, 94 Iff. Y. 302. 
 Hover v. Barkhoof, 44 N. Y. 113. 
 Eobinson v. Chamberlain, 34 N. Y. 389. 
 Adsit v. Brady, 4 HiU, 630. 
 
 (Under this head come the liability of municipal cor- 
 porations and of quasi-corporations and their officers.) 
 
 B. Whom to sue. 
 
 1. Principal. An individual, acting personally, or through 
 agents or servants, or a corporation, is liable to a person suffer- 
 ing injury by a defect or obstruction created, maintained, or 
 negligently suffered, as specified above. 
 
 It is quita unnecessary to dwell upon or illustrate the 
 liability of the principal, acting personally. 
 
 The liability of a principal for the act of his agent is 
 also so elementary that it needs no attention. 
 
 2. Principal for fault of contractor. The application of 
 the doctrine of respondeat superior to the case of a con- 
 tractor and his principal may be considered more fully in 
 another connection. 
 
 The liability of the principal is discussed in 
 
 Blake v. Ferris, 5 N.Y. 48. 
 Pack v. New York, 8 N.Y. 222. 
 Kdly v. New York, 11 N.Y. 432.
 
 Grounds of Liability. 33 
 
 and the absence of liability in 
 
 Baxter r. Warner, G Hun, 585. 
 
 3. Officers. One who assume* the duties and is vested with 
 He powers of a public officer is liable to an individual who sus- 
 tains x/><rial damage by a neglect or omission to properly j» r- 
 form such duties. 
 
 Bennett r. Whitney, 94 N. Y. 302. 
 Hover r. Barkhoof, 44 N. Y. 113. 
 Robinson v. Chamberlain, 34 N. Y. 389. 
 Adsit v. Brady, 4 Hill, 630. 
 
 In Adsit v. Brady the court say : " When an individual 
 sustains an injury by the misfeasance or non-feasance of 
 a public officer, who acts, or omits to act, contrary to his 
 duty, the law gives redress to the injured party by an 
 action adapted to the nature of the case." 
 
 This is denied in Weet v. Trustees of Brockport, 
 10 X. Y. 161, note, but the point was unnecessary to the 
 decision of the case, and the opinion is disapproved in 
 Robinson v. Chamberlain. 
 
 In Hover v. Barkhoof the court say: "The principle 
 should be regarded as settled in this State, that public 
 officers whose duties are not judicial, are answerable 
 in damages to any one specially injured by their care- 
 less and negligent performance of or omission to perform, 
 the duties of their office." 
 
 In Bennett v. Whitney the court add : "It was not a 
 case of non-feasance, or omission to act at all. where in 
 some cases it may be necessary to show adequate means 
 in the hands of the officer; hut a case of misfeasance.
 
 36 Law. 
 
 where the officer had acted, but conducted himself negli- 
 gently, to the special injury of an individual." 
 
 4. Agents and servants. It seems, also, that an agent (') or 
 servant ( 2 ) is responsible for injuries resulting from negligence in 
 his employment. 
 
 (') Phelps v. Wait, 30 N. Y. 78. 
 
 Wright v. Wilcox, 19 Wend. 343. 
 
 Suydam v. Moore, 8 Barb. 358. 
 
 Montfort v. Hughes, 3 E. D. Smith, 591. 
 
 But the mere architect or builder of a public work is 
 answerable only to his employer for any want of care or 
 skill in the execution thereof, and he is not liable to 
 third persons for accidents or injuries which may occur 
 after the completion of such work. 
 
 Albany v. Cunliff, 2 N.Y. 165. 
 
 5. Contractor. Under this head two classes arise : 
 
 (a) A person entering into a contract icith a city to keep 
 its streets in repair, in effect contracts to perform that duty to 
 the, public in the place and stead of the municipality, and may 
 be sued directly by the person injured. 
 
 McMahon v. Second Ave. B. B. Co., 11 Hun, 347 ; 
 75 N. Y. 231. 
 
 (b) A contractor for the performance of certain work is 
 liable for the negligence of himself and his subcontractors and 
 employees in such performance. 
 
 Creed v. Hartmann, 29 N. Y. 591. 
 Burns v. Dillon, 16 W. Dig. 368. 
 Finegan v. Moore, 46 N. J. L. 602.
 
 Grounds of Liability. 37 
 
 (c) "While a contractor is bound t<> put the street in 
 safe condition, he is not bound to place a cross-walk 
 where none had been before. 
 
 Thieme v. Gillen, 41 Hun, 443. 
 
 (d) A contractor may defend by showing that he acted 
 by direction of city office 
 
 Cunningham v. Wright, 28 Hun, 178. 
 
 6. Lot-owner. The abutting owner <iihi«>i, without special 
 
 statute, bv madeli<iU<, either din .fly ,,,- indirectly, for in) 
 occasioned by a defect in a sidewalk, n<>t caused l>y Itim. 
 
 Fulton r. Tucker, 5 T. ft 0. 621. 
 Moore r. Gadsden, 87 N. Y. 84. 
 
 So in Iowa. 
 
 Keokuk r. Independent District, 53 Iowa, 352. 
 
 Even where the charter provides that the city may 
 compel lot-owners to repair, it cannot discharge its own 
 liability by simply giving them notice. 
 
 Bussell r. Canastota, 98 N. Y. 496. 
 
 7. Concurrent liability. Two or more <f the t 
 
 named may be liable for the same defect or obstruction. Thus : 
 
 (a) The owner and the tenant oi premises on which 
 a nuisance is maintained. 
 
 Davenport r. Rucknmn. 87 N.V. 568. 
 Irvine r. Wood. .M NY. 221 
 Jennings v. Van Schaiok, 13 Daly, 510.
 
 38 Law. 
 
 (b) The person causing the obstruction, and the city 
 whose duty it is to care for the streets. 
 
 Wilson v. Watertown, 5 T. & C. 579. 
 
 Dixon v. Brooklyn City, &c. R. R. Co., 100 N. Y. 
 
 170. 
 Trowbridge v. Forepaugh, 14 Minn. 133. 
 
 (c) To which list may be added the contractor with 
 the municipal corporation to perform its duty in caring 
 for the streets. 
 
 McMahon v. Second Ave. R. R. Co., 75 N. Y. 231. 
 
 (d) The municipal corporation and the abutting 
 owner, whom it may, by its charter, compel to repair and 
 improve the sidewalk. 
 
 Russell v. Canastota, 98 N.Y. 496. 
 
 (e) In all the cases above mentioned, where agents or 
 servants are held to be liable to the person injured, it 
 was also held that the principal or master would also be 
 
 liable. 
 
 Wright v. Wilcox, 19 Wend. 343. 
 Suydam o. Moore, 8 Barb. 358. 
 Phelps v. Wait, 30 N. Y. 78. 
 
 (f) For a personal injury occasioned by the negli- 
 gence of several persons, there is both a separate and a 
 joint liability. 
 
 Cases cited nnder fa) and (e) above ; also 
 Creed v. Hartmann, 29 N. Y. 591. 
 
 In Minnesota it appears that the city and the person 
 creating the obstruction cannot be sued jointly. 
 
 Trowbridge v. Forepaugh, supra.
 
 CHAPTER IV. 
 
 HIGHWAYS, HOW ESTABLISHED. 
 
 A. By Statutory Proceeding. 
 
 B. By Prescription. 
 
 1. Introductory. 
 
 2. In New York. 
 
 3 In other States. 
 
 C. By Dedication. 
 
 1. Introductory. 
 
 2. Dedication denned. 
 
 3. Intent must be proven. 
 
 4. Manner of proof. 
 
 5. Intent shown by acts. 
 
 6. Conveyance by map, binding on parties. 
 
 7. Contra, as to the public. 
 
 8. Bight of way. 
 
 9. Map, by whom made. 
 
 10. Actual map. 
 
 11. Inference from user. 
 
 12. Revocation. 
 
 v 13. Acceptance, generally. 
 
 14. How proven. 
 
 15. Acts to prove. 
 
 16. User. 
 
 17. Adjudications as to user. 
 
 18. Statutory acceptance by limitation. 
 
 19. Leading cases. 
 
 20. Miscellaneous cases. 
 
 In order to establish a liability for injuries received, 
 
 upon the ground that they were received upon a public 
 1 & [39]
 
 40 Law. 
 
 highway, it is many times necessary to prove the exist- 
 ence of the highway as a public thoroughfare. 
 
 There ae, speaking generally, three ways by which 
 streets may be established : 
 
 First. By statutory proceeding. 
 
 Second. By prescription. 
 
 Third. By dedication and acceptance. 
 
 The liability of the person or corporation at fault is, 
 however, wholly independent of the way by which the 
 street became such. 
 
 Phelps v. Monkato, 23 Minn. 276. 
 Beaudean v. Cape Girardeau, 71 Mo. 392. 
 
 A. By Statutoky Proceeding. 
 
 There are in every State statutes providing for the 
 establishment of highways, and for their alteration and 
 discontinuance. 
 
 Some of these acts are of general application through- 
 out the State, — as chapter 16 of the Revised Statutes of 
 the State of New York ; others are special, contained in 
 the charters of, or otherwise pertaining to particular 
 municipal corporations. 
 
 It is sufficient, without going into the details of these 
 statutes, to notice that they, in general, authorize cer- 
 tain designated officers (in New York called commission- 
 ers of highways, under the State law), to lay out and 
 alter roads or streets, and they provide for the condem- 
 nation of the required land, and compensation to the 
 owners.
 
 Highways, now Established. 41 
 
 In the charters of municipal corporations it is cus- 
 tomary to provide that all existing streets and highways 
 
 shall be public highways. 
 
 And, in such a case, the question whether or not 
 they are highways, is at rest, save to inquire, as matter 
 of fact, whether given streets come within that statute. 
 
 Hickok v. Pittsburgh, 41 Barb. 130. 
 
 In determining that question, a provision of the char- 
 ter relieving the city of the control of a portion of it, does 
 not detract from the character of any part of it in actual 
 public use as a highway. 
 
 Baxter v. Warner, G Hun, 585. 
 
 B. By Prescription. 
 
 1. In some States statutes exist, prescribing a length of 
 uninterrupted user of roads which shall give rise to the 
 presumption that the same are public highways, and shall 
 constitute them such. In other States it is held that the 
 period of the statute of limitations in real property 
 actions is applicable for that purpose. 
 
 2. In New York, it is provided, in the general highway 
 law, that "all roads not recorded, which have been, or 
 shall have been, used as public highways for twenty 
 years or more, shall be deemed public highways." The 
 same act also provides that all highways that have 
 ceased to be traveled, or used as such for six years, shall 
 cease to bo highways for any purpose. 
 
 2 E. S. 7th ed. p. 1248, H 99, 100.
 
 42 Law. 
 
 " Formerly, the user must have boen twenty years 
 previous to and next preceding March 21, 1797 (1 
 K. L. 1801, p. 595 ; 2 E. L. 1813, 277, § 24) ; and this 
 [supreme] court seems to have considered itself bound 
 to allow no claim founded on user for any other term 
 (Galatian v. Gardner, 7 Johns. 106 ; People v. Lawson, 
 17 Id. 277). But twenty years' general occupation was 
 allowed by the act of February 21, 1817 (Laws of 1817, 
 p. 32, § 3)." 
 
 Pearsall v. Post, 20 Wend. Ill, at p. 116. 
 
 Under this act it was decided in Devenpeck v. Lam- 
 bert, 44 Barb. 596, that an uninterrupted user for more 
 than twenty years constitutes a street by prescription, 
 notwithstanding : 
 
 (1) The several owners of the land did not so intend ; 
 
 (2) The owner be a lunatic, an infant, or a married 
 woman ; 
 
 (3) And had no knowledge of the user during the 
 entire term. 
 
 Also that declarations of an owner that he did not 
 intend dedication, would not take the place of actual 
 interruption of user. 
 
 In He Eebuilding Bridge, &c, 100 N. Y. 642, the 
 question was suggested whether mere user by the public 
 for twenty years, without any action of the town authori- 
 ties in laying out, or recording or improving or accepting 
 the road, would make a highway. But the question was 
 unnecessary to the decision of the case, and was not dis- 
 cussed.
 
 Highways, how Established. 43 
 
 In Cole v. Van Keuren, GT.&C. 480 ; 64 N. Y. G46, 
 held, that the record of a highway under the general 
 highway act is not conclusive, upon the question of pre- 
 scription, upon the owner of the soil, claiming it as ;t 
 private road. 
 
 3. In other States, (a) In Massachusetts, it has been 
 held that if for more than twenty years there has been a 
 constant and uninterrupted use of a sidewalk by the 
 public, under a claim of right to use it as part of a pub- 
 lic street, the city is liable for a defect in it. 
 
 Veale v. Boston, 135 Mass. 187. 
 
 (b) In Iowa, that to establish a highway by prescrip- 
 tion, there must have been a general, uninterrupted use 
 by the public, under a claim of right, for ten years, being 
 the period prescribed by the statute of limitations. 
 
 State v. Tucker, 36 Iowa, 485. 
 State v . Green, 41 Iowa, 693. 
 
 (c) In Indiana, that a road becomes a public high- 
 way by twenty years' user, or in less time with the assent 
 of the owner, and such use that public and private inter- 
 ests would be affected by a change. 
 
 Ross v. Thompson, 78 Ind. 90. 
 
 (d) In Illinois, that a street thrown open for public 
 
 use, and used by the public over twenty years, becomes a 
 
 highway. 
 
 Chicago v. Wright, 69 HI. 318. 
 
 Also, that a tract of land used for a public road, and 
 traveled generally by the public as such, without objec-
 
 44 " Law. 
 
 tion by the owner, for more than twenty years, though 
 not fenced on either side, may become a highway by 
 prescription. 
 
 Slingart v. Holliday, 2 111. Ap. 45. 
 
 (e) In North Carolina, the period is twenty years. 
 But mere use of a foot-path or neighborhood road for 
 twenty years, will not constitute a dedication. 
 
 Boyden v. Aehenbach, 74 N. C. 539. 
 
 (g) In Minnesota, the period is fixed by statute a^ six 
 years. 
 
 Minn. Gen. St. 1878, ch. 13, § 47. 
 
 This statute held to be purely prospective, in 
 State v. Waholz, 28 Minn. 114. 
 
 Certain special provisions, fixing a short limitation 
 in various municipal corporations in New York, are 
 merely in aid of establishing dedication or acceptance of 
 streets, and will be considered in that connection. 
 
 C. By Dedication. 
 
 1. Dedication and acceptance. The third method of estab- . 
 lisidng highways, and the one which has given rise to far the 
 greater part of the adjudication upon the subject, involves two 
 elements : First, a dedication by the owner of the fee or by 
 some one having the right to dedicate ; and second, an accept- 
 ance by the public. 
 
 Niagara Falls Suspension Bridge Co. v. Bachman, 
 66 N. Y. 261.
 
 Highways, how Established. 45 
 
 Chicago r. Thompson, 9 111. Ap. 524. 
 Browue v. Bowdoinham, 71 Me. 144. 
 
 This is an elementary principle, and is laid clown or 
 implied in all the cases cited below. 
 
 Dedication defined. " Dedication, as the term is used 
 with reference to this subject, is tliL; act of devoting or 
 giving property for some proper object, and in such man- 
 ner as to conclude the owner." 
 
 Hunter v. Trustees of Sandy Hill, 6 Hill 407, at p. 
 411. 
 
 " An act by which the owner of the fee gives to the 
 public, for some proper object, an easement in his lands." 
 
 Curtis r. Keesler, 14 Barb. 511, at p. 521. 
 
 3. Necessity of proof. The intent to dedicate »>>'st /* clearly 
 manifested. 
 
 Grinnell v. Kirtland, 2 Abb. N. C. 386 ; S. C., 6 
 Daly, 356 ; S. C, aff'd, without opinion. 68 N. 
 Y. 629. 
 
 McMannis v. Butler, 51 Barb. 436. 
 
 Holdane v. Cold Spring, 21 N. Y. 474. 
 
 Niagara Falls, &o. Bridge Co. r. Bachman, 66 N.T. 
 261. 
 
 Flack v. Green Island, 23 W. Dig. 534. 
 
 Pierpoint v. Harrisville, 9 W. Va. 215. 
 
 State v. Tucker, 36 Iowa, 4?5. 
 
 Sullivan >: State, 52 Iml. 309. 
 •Chicago v. Thompson, 9 111. Ap. 524. 
 
 Porter r. Attica, 33 Hun, Oof,. 
 
 People r. Blake, 60 Cal. 497. 
 
 Wiggins r. Tallmadge, 11 Barb. 457. 
 
 Carpenter r. Gwycn, 35 Barb. 395.
 
 46 Law. 
 
 4. Manner of proof. "While, of course, a direct convey- 
 ance of land or an easement in land for a highway to the 
 public authorities would constitute a dedication, that is 
 not essential or at all usual. 
 
 JSfo deed or other ivriting is necessary to constitute dedi- 
 cation. 
 
 Cook v. Harris, 61 N. Y. 448. 
 Hunter v. Sandy Hill, 6 Hill, 4C7. 
 Curtis v. Keesler, 14 Barb. 511, at p. 521. 
 
 5. Intent. Shown by acts. Dedication may be established 
 
 by any evidence which shoivs the intent of the owner to dedicate. 
 
 The intent may be inferred from acts and declarations of the 
 
 owner. 
 
 Sheen v. Slothart, 29 La. An. 630. 
 
 Brakken v. Minneapolis, &c. By. Co., 29 Minn. 41. 
 
 People v. Blake, 60 Cal. 497. 
 
 Cook v. Harris, 61 N. Y. 448. 
 
 Be Cooper, 6 W. Dig. 144. 
 
 McMannis v. Butler, 51 Barb. 436. 
 
 Wiggins v. Tallmadge, 11 Barb. 457. 
 
 Denning v. Boome, 6 Wend. 651. 
 
 In Wiggins v. Tallmadge, the act of dedication con- 
 sisted in the opening of a lane or road by two owners 
 upon their boundary line, to accommodate the adjoining 
 lands. 
 
 In He Cooper, it consisted in grading, paving and 
 guttering, and in Denning v. Eoome the former owner 
 paid an assessment for paving. 
 
 6. Conveyance by map- A conveyance of lots with refer- 
 ence to a map, on which the land is laid off in streets and 

 
 Highways, how Established. 47 
 
 squares, whether the map is made andfibed by the oioner (X) <>r is 
 
 a public map, {2) is, as to the oivru r, a dedication of the streets, 
 
 alleys and squares referred to, to tk extent and as designated 
 
 on the map. 
 
 (>) Dewitt v. Itliaca, 15 Hun, 568. 
 
 McMannis r. Butler, 51 Barb 436. 
 
 Bridges v. Wyckoff, 67 N. Y. 130. 
 
 Taylor v. Hopper, 2 Hun, 646 ; 62 N. Y. 649. 
 
 Child v. Chappell. 9 N. Y. 246, at p. 257. 
 
 Post v. Pearsall, 22 Wend. 126. 
 
 (See many cases cited at p. 435. ) 
 
 Cox v. James, 45 N. Y. 557. 
 
 Baton Rouge v. Bird, 21 La. An. 244. 
 
 Bartlett r. Bangor, 67 Maine, 460. 
 (*) Re Ingraham, 4 Hun, 495. 64 N. Y. 310. 
 
 Clark r. Elizabeth, 40 N. J. L. 172. 
 
 Re Thirty-ninth Street, 1 Hill, 191. 
 
 Bissell v. N. Y. C. R. R. Co., 23 N. Y. 61. 
 
 People v. Lambier, 5 Denio, 9. 
 
 People v Loehfelm, 102 N. Y. 1. 
 
 Also cases cited next below. 
 
 7. Contra. But as in tin- public, if is but an offer to ded- 
 icate, and is not complete until accepted by competent authority, 
 or by user. 
 
 Dewitt r. Ithaca, 15 Hun, 568. 
 
 Oswego r. Oswego Canal Co., 6 N. Y. 257. 
 
 Underwood v. Stuyvesant, 19 Johns. 181. 
 
 Wohler v. Buffalo & State Line R. R. Co., 46 NT. 
 
 686. 
 Niagara Falls, etc. Br. Co. r. Bachman, 66 N.Y. 261. 
 
 Taylor v. Hopper, 62 N. Y. 649. 
 
 Re Ingraham, 4 Hun, 495. 
 
 Strong r. Brooklyn, 68 N. Y. 1. 
 
 Child' v. Chappell, 9 N. Y. 246. 
 
 8. Right of way. And as to the owner it is only good as a 
 right of way, until accepted. 
 
 Badeau r. Mead, 14 Barb. 328. 
 Taylor r. Hopper, 62 N.Y. 649.
 
 48 Law. 
 
 Holdane v . Cold Spring, 21 N. Y. 474. 
 
 Fonda v. Borst, 2 Abb. Dec. 155 ; 2 Keyes, 48. 
 
 Grinnell v. Kirtland, 2 Abb. N. C. 386. 
 
 In Badeau v. Mead, — a case arising in the country,—^ 
 it was assumed that the rule would be different as to city 
 lands. 
 
 In Grinnell v. Kirtland, however, it is expressly held 
 to apply as well to urban as to rural property. 
 
 9. Map, by whom made. The map must have been made 
 or accepted by the owner of the premises, or by some one 
 having the right to dedicate the land. 
 
 Ee Rhinelander, 68 N. Y. 105. 
 
 In this case, it was held that where the map was 
 made by the municipal authorities, and the owners had 
 nothing to do with it, the mere fact that the land on each 
 side of the street was afterwards divided into lots, is 
 without significance. 
 
 In People v. Brooklyn, 48 Barb. 211, the map was 
 made and filed by commissioners in a partition suit, upon 
 actual partition of the land among tenants in common. 
 All subsequent conveyances carried to the centre of the 
 streets ; one of them describing the land within the 
 street as subject to the public use as a highway. Held, 
 that the original map and partition was a dedication, and 
 that the subsequent sales must be interpreted as convey- 
 ing as and for the purposes of public streets.
 
 Highways, how Established. 49 
 
 In Flack v. Green Island, 23 W. Dig. 534, held, that a 
 map made by a civil engineer, and recognized for years 
 by the owners and the public authorities, and adopted 
 by unmistakable acts, is equally conclusive for all pur- 
 poses of a dedication as if made by the land-owners, or 
 by their direction. 
 
 10. Actual map. To constitute a dedication, the deed must 
 re/er to a street or avenue actually laid out on maps actually 
 made and filed. 
 
 Be Eleventh Avenue, 49 How. Pr. 208.81 N. Y. 433. 
 
 11. Inference from user. There seems to be a line of 
 authorities holding that, aside from prescription, dedica- 
 tion by the owner may be inferred from uninterrupted 
 user for a great length of time ; or, at least, that user 
 may be an element in determining the intent of the owner. 
 Among such cases are : 
 
 Denning v. Boome, 6 Wend. 651. 
 
 Curtis v. Keesler, 14 Barb. 511. 
 
 Hunter v. Sandy Hill, 6 Hill, 407. 
 
 Wilson v. Sexon, 27 Iowa, 15. 
 
 Daniels v. Chicago, &o. B. B. Co., 35 Iowa, 129. 
 
 Sullivan v. State, 52 Ind. 309. 
 
 12. Revocation. Dedication may be revoked by the owner 
 at any time before acceptance, whether by express corporate or 
 official act, or user, (*) but not after. ( a ) 
 
 Bridges v. Wyckoff, 67 N. Y. 130. 
 Lee v. Sandy Hill, 40 N. Y. 442. 
 
 Quaere as to ('), 
 
 Jordan v. Otis, 37 Barb. 50.
 
 50 Law. 
 
 Contra as to ( 1 ), 
 
 M. E. Church v. Hoboken, 33 N. J. L. 13. 
 
 Contra as to ( 2 ), 
 
 Adams v. Saratoga, &c. E. B. Co., 11 Barb. 414. 
 Eev'd on other grounds, 10 N. Y. 328. 
 Cook v. Harris, 61 N. Y. 448. 
 
 (a) Revocation can be made by no one who has not 
 succeeded to the title of the original proprietors. 
 
 McMannis v. Butler, 51 Barb. 436. 
 
 (b) "Whether the revocation is made by putting a 
 
 building partly across the street, is a question for the 
 
 jury. 
 
 Id. 
 
 13. Acceptance, generally. Dedication of land or an ease- 
 ment, by the owner of the fee, is not enough to constitute a high- 
 way. This must be supplemented by an acceptance of the 
 same, either express or implied. 
 
 See cases cited under (7) above ; also, next section. 
 Corwin v. Corwin, 24 Hun, 147. 
 Eozell v. Andrews, 103 N. Y. 150. 
 
 14. How proven. Acceptance must be clearly proven, either 
 by formal action or by distinct and unequivocal circumstances. 
 
 McMannis v. Butler, 51 Barb. 436. 
 
 Holdane v. Cold Spring, 21 N. Y. 474. 
 
 Niagara Falls, &c. Bridge Co. v. Bachman, 66 
 
 N. Y. 261. 
 Grinnell v. Kirtland, 2 Abb. K C. 386. 
 Byrne v. N. Y. C. & H. E. E. E. Co., 94 N. Y. 12. 
 Fonda v. Borst, 2 Abb. Dec. 155. 
 Clements v. West Troy, 16 Baib. 251.
 
 Highways, how Established. 51 
 
 Jordan r. Otis, 37 Barb. 50. 
 
 Oswego v. Oswego Canal Co., G N. Y. 257. 
 
 Bissell v. N. Y. C. B, It Co., 23 N. Y. 61. 
 
 Booraem v. No. Hudson By. Co., 39 N. J. Eq. 465. 
 
 Ex parte Pittsburgh Alley, 104 Pa. St. 622. 
 
 Manderscbid v. Dubuque, 29 Iowa, 73. 
 
 State v. Tucker, 36 Iowa, 485. 
 
 Forbes v. Balenscifer, 74 111. 183. 
 
 Flack v. Green Island, 23 W. Dig. 531 
 
 15. Acts to prove. It may he proven by acts of the mum - 
 pality or its officers. 
 
 Cook r. Harris, 61 N. Y. 448. 
 Hillier v. Sharon Spr., 28 Hun, 344. 
 Sewell v. Cohoes, 75 N. Y. 45. 
 Niven r. Boehester, 76 N. Y. 619. 
 Sckomer v. Boehester, 15 Abb. N. C. 57. 
 Tierney v. Troy. 41 Hun, 120. 
 People v. Loehfelm, 102 N. Y. 1. 
 Pomfrey v. Saratoga Springs, 104 N. Y. 459. 
 And many other cases. 
 
 Among the acts may be mentioned a few, as : 
 
 (a) Resolution to enter street in records. 
 
 Be Cooper, 6 W. Dig. 144. 
 
 (b) Taking charge of, regulating, paving and repair- 
 ing. 
 
 Sewell v. Cohoes, sujiru. 
 McMannis v. Butler, 51 Barb. 436. 
 Shartle v. Minneapolis, 17 Minn. 308. 
 
 Laying gas and water pipes, and lighting street. 
 
 Be Ingraham, 4 Hun, 495. 
 
 Modified, on other grouuds, Gi N. Y. 310. 
 
 (c) Resolutions of common council as to same. 
 
 Same cases ; also, 
 
 Schomer v. Boehester, 15 Abb. N. C. 57. 
 
 Niven v. Boehester, 76 N. Y. 619.
 
 52 Law. 
 
 16. User. Acceptance may be proven by user, with other 
 
 evidence. 
 
 Curtis v. Keesler, 14 Barb. 511. 
 
 Pomfrey v. Saratoga, 34 Hun, 607 ; 104 N. Y. 459. 
 
 Sewell v. Cohoes, 75 N. Y. 45. 
 
 People v. Blake, 60 Cal. 497. 
 
 Brakken v. Minneapolis, &c. By. Co., 29 Minn. 41. 
 
 Dewitt v. Ithaca, 15 Hun, 568. 
 
 Kennedy v. Le Van, 23 Minn. 513. 
 
 Manderschid v. Dubuque, 29 Iowa, 73. 
 
 Forbes v. Balenseifer, 74 HI. 183. 
 
 Flack v. Green Island, 23 W. Dig. 534. 
 
 People v. Loehfelm, 102 N. Y. 1. 
 
 Driggs v. Phillips, 103 N. Y. 77. 
 
 17. Adjudications as to user. The effect of user is usually 
 considered in cases involving its effect upon both, dedica- 
 tion and acceptance. For that reason it has been thought 
 best to examine a few of such cases in this dual capacity. 
 
 (a) To constitute dedication by user, no particular 
 time is necessary. If express and unequivocal, a short 
 time is enough. 
 
 Carpenter v. Gwynn, 35 Barb. 395. 
 
 Clements v. West Troy, 10 How. Pr. 179. 
 
 Curtis v. Keesler, 14 Barb. 511. 
 
 Hunter v. Sandy Hill, 6 Hill, 407, 
 
 Child v. Chappell, 9 N. Y. 246. 
 
 Cook v. Harris, 61 N. Y. 448. 
 
 McMannis v. Butler, 51 Barb. 448. 
 
 Denning v. Roome, 6 Wend. 651. 
 
 Hiner v. Jeanpert, 65 HI. 428. 
 
 Ogle v. Phila., &c. B. R. Co., 3 Houst. (Del.) 267. 
 
 In Denning v. Eoome, it is stated that the length of 
 time to constitute dedication is not settled, "probably 
 because the presumption does not depend on that 
 alone."
 
 Highways, how Established. 53 
 
 (b) It should be for such a length of time that the 
 public accommodation and private rights might be ma- 
 terially affected by an interruption of the enjoyment. 
 
 Cincinnati v. "White, 6 Peters, 431. 
 McMannis v. Butler, 51 Barb. 436. 
 
 (c) User even for more than twenty years against the 
 will of the owner cannot be urged by the public as the 
 foundation of prescription or evidence of dedication. 
 
 PearsaU v. Post, 20 Wend. Ill ; 22 Wend. 425. 
 Pearsall r. Hewitt, 20 Wend. Ill ; 22 Wend. 559. 
 Sullivan v. State, 52 Ind. 309. 
 
 (d) '' It is to be borne in mind that mere user is not 
 sufficient ; though user may be taken in connection with 
 other evidence to prove actual dedication. To show that 
 persons have exercised the right for a series of years, is 
 but a link in the chain of proof to establish the conclu- 
 sion that the owner of the fee has appropriated or set 
 apart and given to the public an easement or use in his 
 land, which he cannot recall at pleasure." 
 
 Curtis v. Keesler, 14 Barb. 523. 
 
 (e) User alone, to constitute dedication, must have 
 continued twenty years. 
 
 Gould v. Glass, 19 Barb. 179. 
 
 And then the importance of dedication disappears, 
 since the statute makes the highway by prescription. 
 
 Porter r. Attica, 33 Hun, 605.
 
 54 Law. 
 
 (f) In People v. Livingston, 27 Hun, 105, the question 
 of user as establishing dedication was considered. 
 
 " Fifty years ago, the owner of the lot tcld some of his 
 neighbors that if they would help him build a stone-wall 
 from the main road to the lake, they could drive their 
 sheep to the lake and wash them there. They helped 
 him build the wall, and since then, these persons and 
 their successors, as they had occasion, drove their sheep 
 across this lot, which adjoined the Knox road on one 
 side and the lake on the other, to an enclosure upon the 
 lake shore, and there washed them. As this lot was un- 
 fenced alon^ the Knox road, the public, in passing to and 
 from the lake, crossed it where it was most convenient. 
 Picnic parties, fishermen and others crossed over it to 
 and from the lake. In the winter, ice was drawn from 
 the lake across it, and sometimes when the lake was 
 frozen teams were driven across it to and from the lake. 
 There is no regular travelled road across the lot, and the 
 evidence is that when people crossed it, they crossed it 
 in different places. The sheep, it is true, made a beaten 
 path from the Knox road to the sheep pen, but there 
 does not appear to have been any other well-defined path. 
 All over the lot were wagon and cattle tracks, and the 
 evidence fails to show that the travel, except by the 
 sheep, was in an uniform route, and except that on the 
 
 shore of the lake, the tracks were more united 
 
 The license given by the owner of the land to those who 
 helped him build his stone-wall, to drive their sheep 
 across his lot, conferred no rights upon the public. . . 
 Leaving the sheep path out of the case, and no road 
 across the lot ever existed, unless the whole lot should 
 be condemned for that purpose. . . . . If all the
 
 Highways, how Established. 55 
 
 • travel across the lot for the last twenty years had 
 been confined to one route, it is not improbable that 
 a highway by user would have been located and estab- 
 lished ; but the burden was upon the people to prove a 
 highway over the route they described, and this they 
 utterly failed to do." 
 
 (g) In McMannis v. Butler, 51 Barb. 436, a map had 
 been made and filed by the proprietors in 1827, showing 
 the road, which was in continuous public use from 1832 
 to 1865. Held, accepted by public user. It also 
 appeared in the case that the street had been accepted 
 by acts of the common council. 
 
 The rule of dedication and acceptance by user is laid 
 down in that case, as follow r s : 
 
 Clear, unequivocal and decisive acts of the owners, 
 amounting to an explicit manifestation of 'their will to make 
 a permanent abandonment and dedication of the land, is suffi- 
 cient to establish dedication. 
 
 If land dedicated is, without any intermediate 'period, 
 unequivocally used and occupied for any continuous period 
 of time by the public at large, it amounts to an adoption of the 
 dedication. 
 
 (h) In Wiggins v. Tallmadge, 11 Barb. 457, the owners 
 opened a road to accommodate adjacent lands. 
 
 It w r as used forty years by the public ; and, more than 
 twenty years after, the authorities had connected it with 
 a public road beyond. Held, dedication and accept- 
 ance.
 
 56 * Law. 
 
 18. Statutory acceptance by limitation. In many munici- 
 palities in New York, there is a statute of which the 
 Kochester act (Laws of 1880, chap. 14, section 163) is an 
 example : 
 
 " Whenever any street, alley or lane shall have been 
 opened to or used by the public for the period of five 
 years, the same shall thereby become a street, alley or 
 lane for all purposes, and the said common council and 
 executive shall have the same authority and jurisdiction 
 over and right and interest in the same as they have by 
 law over the other streets, alleys, lanes and highways, 
 laid out over it." 
 
 Under this act, held that no formal act of acceptance, 
 other than the acceptance of the charter containing such 
 section, was needed. 
 
 Requa v. Rochester, 45 N. Y. 129. 
 
 Also, that it was not intended to have a retroactive 
 effect, so as to divest parties of existing rights. 
 
 McMannis v. Butler, 49 Barb. 177. (Reversed, 51 
 Barb. 436, on other grounds.) 
 
 Under the Brooklyn act it was held in Baldwin v. 
 Jenkins, 1 W. Dig- 398, Brooklyn city court, general 
 term, that mere throwing open and use would not have 
 the effect of dedication, unless accepted by the authori- 
 ties. 
 
 This, however, would seem questionable, in view of 
 the following rule :
 
 Highways, now Established. 57 
 
 Such statutes take the place of an acceptance, and that only. 
 The intention of the ovmer to dedicate must still be proven. 
 
 Strong v. Brooklyn, 68 N. Y. 1. 
 Morse v. Troy, 38 Hun, 301. 
 
 In the latter case, the accident happened May 1, 1877. 
 
 The land had been deeded in 1871, with a proviso 
 that a street should be opened on or before June 1, 1872. 
 Held, that five years not having elapsed, there was no 
 dedication or " throwing open " by the deed. 
 
 Also that, although the owner had done some work- 
 ing and grading, it was not sufficient (as was necessary) 
 to enable the city to have accepted the dedication at the 
 beginning of the five years period, or at any time 
 within it. 
 
 19. Some leading cases. It may be useful to notice a 
 few adjudications upon the subject of dedication and 
 acceptance of streets, as applied in considering the lia- 
 bility of municipal corporations for failure to keep the 
 streets in safe condition for travel. 
 
 (a) In Sewell v. Cohoes, 11 Hun, G26 ; 75 N. Y. 45, the 
 hats in quo was a strip of land along the Erie canal, upon 
 State land, but which the city had caused to be paved 
 and graded, and it was used as a public street. 
 
 This was crossed by a bridge so low that the plaintiff 
 —the driver of a circus wagon— was struck by the bridge 
 and injured. 
 
 Held, that the city, by its action, in taking charge of,
 
 58 Law. 
 
 regulating and grading, was estopped from denying that 
 the place was a public highway. 
 
 Also, that it was competent to prove resolutions of 
 the common council as to grading and paving. 
 
 And resolutions after the accident, directing the 
 removal of the bridge, to show that the city exercised 
 control. 
 
 (b) In Hiller v. Sharon Springs, 28 Hun, 344, held, 
 that though an individual cannot, by putting a sidewalk 
 along his premises, compel the authorities to accept it : 
 yet, where he does so construct one, not merely for his 
 private benefit, the authorities may, by their acquies- 
 cence and other acts, show their acceptance, and thus 
 bind themselves to keep the sidewalk in repair. 
 
 That no distinct act of adoption or acceptance need 
 be shown, nor any positive recognition of it. 
 
 (c) In Porter v. Attica, 33 Hun, 605, the defective 
 sidewalk was at the intersection of a street with a way 
 leading to several dwellings ; the way had been there 
 forty years, and the houses twenty or more. 
 
 Upon a change of grade of the sidewalk on the street, 
 that of the way had not been changed ; but the authori- 
 ties had provided an earth approach to it. This washed 
 away, and the hole thus formed caused the injury. 
 
 Held, for the jury to say whether it had become a 
 highway, so that the village were bound to repair it, both 
 as to user and dedication and acceptance.
 
 Highways, how Established. 59 
 
 (The opinion in this case contains a useful examina- 
 tion of authorities showing different rulings upon the 
 question of user as constituting acceptance.) 
 
 (d) In Pomfrey v. Saratoga Springs, 34 Hun, G07, 
 the injury was caused by snow falling from a roof upon 
 a sidewalk in a village. 
 
 It was part of a continuous street ; had been so used 
 for many years ; the city had put a sidewalk upon part 
 of the street, 
 
 The owner used the space in question to cross to his 
 barn, and left and washed carriages there ; the public 
 used it as a sidewalk. There had been no formal accept- 
 
 ance. 
 
 Held, that the jury were justified in finding dedication 
 and acceptance. 
 
 This case was distinguished in Veeder v. Little Falls, 
 100 N. Y. 343, upon the ground that the dangerous 
 embankment there was on State land, where the village 
 had wrongfully placed a street, and where they had no 
 right to put a railing. 
 
 20. Miscellaneous adjudications. 
 
 (a) The highway act of 1813, stating that if a road ia 
 not opened or worked within six years from the time of 
 laying out, it shall cease to be a highway, does not refer 
 to those dedicated to public use. 
 
 McMannis r. Butler, 51 Barb. 436. 

 
 60 Law. 
 
 (b) Dedication as a private way, or any length of user 
 as such, is not enough. 
 
 State v. Tucker, 36 Iowa, 485. 
 
 (c) Dedication may be established, although proven 
 as to only part of the highway. 
 
 Havana v. Biggs, 58 HI. 483. 
 
 (d) So, though there be no outlet, or the street end in 
 
 a private way. 
 
 Saunders v. Townsend, 26 Hun, 308. 
 Wiggins v. Tallmadge, 11 Barb. 457. 
 People v. Kingman, 24 N. Y. 559. 
 People v. Van Alstyne, 3 Abb. Dec. 575. 
 See discussion, Hickok v. Plattsburgh, 41 Barb. 
 130. 
 
 (e) Or though it be only a public foot-way. 
 
 Tyler v. Sturdy, 108 Mass. 196. 
 
 (A list of useful authorities on dedication is found at 
 2 Abb. N. C. 400, note.)
 
 CHAPTER V. 
 
 GENERAL LIABILITY OF CITIES. 
 
 1. Introductory. 
 
 2. Rule. 
 
 3. Occasions of liability. 
 
 4. Subjects suggested. 
 
 1. Introductory. Having thus far noticed certain inci- 
 dental and preliminary subjects, we come to the principal 
 topic, — the liability of municipal corporations to respond 
 in damages to persons injured by unsafe streets. 
 
 2. General rule. The general principle of such liabil- 
 ity is nowhere better stated than in the case first below 
 cited, as follows : 
 
 Municipal corporations proper, having the powers ordini- 
 rily conferred upon them respecting streets icithin their limits, 
 owe to the public the duty to keep them in a safe condition for 
 use in the usual mode by travellers, and are liable in a civil 
 action for special injury resulting from neglect to perform this 
 duty. 
 
 Citing 
 
 Ehrgott v. New York, 96 N. Y. 264, at p. 271. 
 
 New York v. Furze, 3 Hill, 612. 
 Conrad v. Ithaca, 16 N. Y. 158. 
 Requa v. Rochester, 45 N. Y. 129. 
 Barnes r. District of Col., 91 U. S. 540. 
 Hutson v. New York, 9 N. Y. 163. 
 Davenport r. Ruckman, 37 N. Y. 568. 
 Hume v. New York, 74 N. Y. 264. 
 
 [61]
 
 62 Law. 
 
 And cited in 
 
 Hunt v. New York, 52 Super. 198. 
 
 See also, 
 
 Reinhard v. New York, 2 Daly, 243. 
 Gorham v. Coopersfcown, 59 N. Y. 660. 
 Knoxville v. Bell, (Tenn.) 12 Lea, 157. 
 Griffin v. WiUiamstown, 6 W. Va. 312. 
 
 And other cases cited in chap. VII. § L post. 
 
 And this is true by night as well as by day. 
 
 Davenport v. Ruckman, supra. 
 Rome v. Dodd, 58 Ga. 238. 
 
 3. Occasions. And the occasions of such liability are 
 well expressed in Atchison v. King, Kansas, 550, as 
 follows : 
 
 (1) Negligent construction of street by city. 
 
 (2) Causing defects therein after they are made. 
 
 (3) Negligently permitting defects to continue. 
 
 Or, as stated in Gorham v. Cooperstown, 59 N.Y. 660 : 
 " Municipal corporations are not guarantors for the 
 absolute safety of all persons from injury by reason of 
 defects in or obstructions of the streets or highways of 
 the municipality. They are only liable when the defects 
 or obstructions are the results of their acts, or of some 
 neglect or omission of duty by them or their servants or 
 agents ; and individuals in the use of streets receive 
 injuries therefrom without fault on their part ; some 
 overt act of the municipality or its officers, resulting in 
 injury to third persons, or some neglect or omission of 
 duty in repairing defects or removing obstructions, must
 
 General Liability of Cities. C3 
 
 be established, in order to charge the municipality with 
 the consequences of any defects in or obstructions of 
 the thoroughfares within the corporation." 
 
 4. Subjects suggested. The above rule and synopsis 
 suggest many considerations, some of which will be 
 more or less fully treated in subsequent chapters. The 
 arrangement of them will not perhaps be wholly logical, 
 but follow the sequence which seems to the writer to be 
 as natural as any.
 
 CHAPTER VI. 
 
 WHO TO BE PEOTECTED, AND WHEEE. 
 
 A. Who to be Protected. 
 
 1. New York rule. 
 
 2. In some States, travellers only. 
 
 B. The Locus in Quo. 
 
 1. Introductory. 
 
 2. Highway within limits. 
 
 3. Place treated as street. 
 
 4. Eight to whole street. 
 
 5. Cross-walk. 
 
 6. Side-walk. 
 
 7. Access from private property. 
 
 8. Bridge and approaches. 
 
 9. Common path. 
 
 10. Apparent walk. 
 
 11. Place off street. 
 
 A. Who Entitled to Protection. 
 
 1. New York rule. Protection in this State is extended to 
 every one lawfully using the streets. 
 
 Eehberg v. New York, 91 N. Y. 137. 
 McGarry v. Loomis, 63 N. Y. 104. 
 McGuire v. Spence, 91 N. Y. 303. 
 Eunz v. Troy, 5 N. Y. St. E. 642. 
 
 In the case first above cited, the injury was to a work- 
 man engaged in excavating the street (so said at 91 N. Y. 
 
 p. 306). In the other cases, it was to children playing. 
 [64]
 
 Who to be Protected, and Where. 65 
 
 The same rule applies iu Illinois, 
 
 Chicago v. Keefe, 32 Alb. L. J. 362. 
 
 and Maryland. 
 
 Hussey p. Ryan, 4 East. R. 462. 
 
 In McGarry v. Loomis the court say : 
 
 " That it is not unlawful, wrongful or negligent for 
 children on the sidewalk to play, is a proposition which 
 is too plain for comment." 
 
 In Chicago v. Keefe : " Those using the streets for 
 recreation or for pleasure, or for mere idle curiosity, so 
 that they do not infringe upon the rights of others to use 
 them, are equally within the protection of the law while 
 using them, and hence equally entitled to have them in a 
 reasonably safe condition, with those who are passing 
 along them as travellers, or in the pursuit of their daily 
 avocations." 
 
 2. In some States the rule prevails that only travellers 
 are protected. 
 
 Blodgett v. Boston, 8 Allen, 237. 
 McCarthy v. Portland, 67 Me. 167. 
 Donoho v. Vulcan Iron Works, 75 Mo. 401. 
 
 But in New Hampshire, where such a rule prevails, 
 it has been held, that for a boy to stand from three to five 
 minutes upon a public highway to see a procession pass, 
 does not, as matter of law, exclude him from the class of 
 "travellers." 
 
 Varney v. Manchester, 58 N. H. 430.
 
 G6 Law. 
 
 B. The Locus in quo. 
 
 1. Introductory. Having considered in a former chapter 
 the somewhat abstract question of the establishment of 
 highways, we now may notice another subject somewhat 
 akin to that, but more intimately connected with the 
 main subject of investigation ; — for injuries received in 
 what places must a municipal corporation respond in 
 damages ? 
 
 And first we observe that the actual establishment of 
 a street by any of the ways heretofore considered is not 
 always necessary to fix such liability. 
 
 2. Highway within limits. A highiuay used by the public, 
 within the limits of a municipal corporation, is a street to 
 such an extent as to render the city liable for the consequences 
 of an excavation made under its direction and left unguarded. 
 
 Brusso v. Buffalo, 90 N. Y. 679. 
 Lafayette v. Larson, 73 Ind. 367. 
 
 This in New York city includes the " annexed dis- 
 trict." 
 
 Bichard v. New York, 48 Super. 315. 
 
 And it makes no difference that the street is unflagged 
 
 ; and unpaved. 
 
 Bullock v. New York, 99 N. Y. 654. 
 
 3. Treated as street. If the authorities of a city or town 
 have treated a place as a public street, the municipality is 
 responsible for its condition, and cannot throw the person 
 injured into an inquiry into the manner or authority of its 
 
 establishment. 
 
 Avery v. Syracuse, 29 Hun, 537. 
 Kehberg v. New York, 91 N.Y. 137.
 
 Who to be Protected, and Where. G7 
 
 New York v. Sheffield, 4 Wall. 189. 
 Tierney v. Troy, 41 Hun, 120. 
 
 Whether a city has treated a particular place, — e. g., 
 a causeway built by a bridge company, — as a street, 
 is a question for the jury. 
 
 Manchester v. Ericsson, 105 U. S. 347. 
 
 4. Right to whole street. Again, the question arises, 
 must the whole street be kept safe for travel, or is the 
 traveller restricted to any particular part ? 
 
 Making due allowance for the different conditions in 
 villages and in cities ; and in more or less travelled 
 thoroughfares ; also for the necessary obstruction of 
 portions of streets from time to time for various purposes, 
 as before alluded to, the rule laid down in a recent New 
 York case is a safe one. 
 
 "As a general rule, the public are entitled not only to a />• e 
 -passage along the streets, but to a free passage over each an I 
 every portion of every street." 
 
 Lavery v. Hannigan, 52 Super. 463, at p. 467. 
 Monongahela v. Fischer, (Pa.) 2 Atl. R. 87. 
 
 5 Crosswalk. A crosswalk is part of the street . 
 
 Eines v. Lockport, 50 N. Y. 236. 
 Walker v. Lockport, 43 How. Pr. 366. 
 Brusso v. Buffalo, 90 N. Y. 679. 
 Goodfellow v. New York, 100 N.Y. 115. 
 Dickinson v. New York, 92 N. Y. 584. 
 Detroit v. Putnam, 45 Mich. 263. 
 
 This includes a bridge over a drain at a street cross- 
 ing. 
 
 Atlanta v. Champe, 66 Ga, 659.
 
 68 Law. 
 
 6. Sidewalk. In New York and many other States a side- 
 walk is part of the street. (But see A, supra.) 
 
 Graves v. Otis, 2 Hill, 466. 
 
 Ellis v. Lowville, 7 Lacs. 434. 
 
 Fulton v. Tucker, 5 T. & C. 621. 
 
 Wilson v. Watcrtown, 3 Hun, 508. 
 
 Lavery v. Hannigan, 52 Super. 463. 
 
 Koch v. Edge water, 18 Hun, 407. 
 
 Be Burmeister, 76 N. Y. 174. 
 
 Pomfrey v. Saratoga Spr., 104 N. Y. 459. 
 
 And many other New York cases. 
 
 Providence v. Clapp, 17 How. (U. S.) 161. 
 
 Cusick v. Norwich, 40 Conn. 375. 
 
 Dooley v. Meriden, 44 Con. 117. 
 
 Indianapolis v. Gaston, 58 Ind. 224. 
 
 Tabor v. GraffmiUer, (Ind.) 9 No. East. E. 721. 
 
 But not in others. 
 
 Detroit v. Putnam, 45 Mich. 263. 
 O'Neal v. Detroit, 50 Mich. 133. 
 Dupuy v. Union, 46 N. J. L. 269. 
 
 The Michigan statute limits the right of action to 
 "public highways, bridges, crosswalks and culverts." 
 
 The New Jersey act, to "insufficiency or want of 
 repair of any public road." 
 
 Under the Michigan act, it has been held that a walk 
 across an alley is a crosswalk and not a sidewalk. 
 
 Pequignot v. Detroit, 16 Fed. Eep. 211. 
 
 Under certain charters in New York it has been 
 held that the power of the city or village over its side- 
 walks is purely discretionary, and that no action will 
 
 lie. See 
 
 Cole v. Medina, 27 Barb. 218. 
 Peck v. Batavia, 32 Barb. 634. 
 Hart v. Brooklyn, 36 Barb. 226.
 
 WHO TO BE PllOTECTEDf AND Where. G9 
 
 7. Access from private property. Iu Massachusetts, a 
 statute exempts cities from liability for accidents in pri- 
 vate ways leading into public ways. 
 
 This act has been held to apply to the space between 
 the entrance to the private way and that part of the pub- 
 lic way which is worked for travel. 
 
 Paine v. Brockton, 133 Mass. 561. 
 
 A similar statute exists in Iowa. 
 
 Goodin v. Des Moines, 55 Iowa, 67. 
 
 8. Bridges. In Kansas, held, that a bridge wholly 
 within a city, is, with its approaches, a part of the street, 
 and the same liability attaches — even though the bridge 
 was originally built by the county. 
 
 Eudora v. Miller, 30 Kan. 494. 
 
 In New York, that if bridge and approaches, though 
 owned by the State, are treated as part of the public 
 street by the city, the latter is liable for their condition. 
 
 Sckomer v. Bockester, 15 Abb. N. C. 57. 
 
 And the duty to keep a bridge in repair carries with 
 it the duty to keep up guards or rails where necessary. 
 
 Hyatt v. Bondout, 44 Barb. 385. 
 
 Though this would not apply in case of a State bridge 
 where the city had no right to place railings. 
 
 Carpenter v. Cohoes, 81 N. Y. 21. 
 Veeder r. Little Falls, 100 N.Y. 343.
 
 70 i Law. 
 
 9. Common path. For leaving unprotected a danger- 
 ous precipice, formed by cutting a road across a com- 
 monly used path, a city is liable. 
 
 Orme v. Bichmond, 79 Va. 86. 
 
 And generally, for a commonly used path in the mar- 
 gin of a road, or otherwise. 
 
 Potter v. Castleton, 53 Vt. 435. 
 Aston v. Newton, 134 Mass. 507. 
 
 10. Apparent walk. Where a brace was put across a 
 trench, for the purpose of supporting the soil, but appa- 
 rently for a cross-walk, held that it must be kept safe. 
 
 Finegan v. Moore, 46 N. J. L. 602. 
 
 So must a wooden cover to a water-box in a sidewalk. 
 Campbell v. Syracuse, 20 W. Dig. 449. 
 
 11. Outside street line. Whether a cellar along the line 
 of the street is a defect which a city is bound to rem- 
 edy, (*) or whether a dangerous place outside the limits 
 of the street is so near as to render the street unsafe 
 for travel, ( 2 ) are questions for the jury. 
 
 (') Stack v. Portsmouth, 52 N. H. 221. 
 (*) Warner v. Holyoke, 112 Mass. 362. 
 Drew v. Sutton, 55 Vt. 586. 
 
 Upon the question of dangers off the street, in the 
 following cases, recovery was allowed : 

 
 Who to be Protected, and Where. 71 
 
 (a) Person stepping one foot off the sidewalk to a 
 hydrant two feet from the line. 
 
 Duffy v. Dubuque, 63 Iowa, 171. 
 
 (b) Excavation adjoining sidewalk, unguarded. 
 
 Buuch v. Edenton, 90 N. V. 431. 
 
 (c) Ice on pile of dirt five feet wide and a foot hig"h, 
 two feet off beaten track. 
 
 Stafford v. Oskaloosa, 64 Iowa, 251. 
 
 (d) Injury opposite premises occupied by plaintiff as 
 
 tenant. 
 
 Avery v. Syracuse, 29 Hun, 537. 
 
 And in the following, not : 
 
 (a) Hole five feet from highway, in outskirts of 
 
 village. 
 
 Keyes v. Marcellus, (Mich.) 28 Alb. L. J. 199. 
 
 (b) Place of accident, twenty-eight or thirty feet 
 
 from street. 
 
 Daily v. Worcester, 131 Mass. 452. 
 
 Kelley v. Columbia, (Ohio) 31 Alb. L. J. 379. 
 
 (c) Generally, away from street. 
 
 Young v. Dist. Col., 3 MacArthur, 13/. 
 Barnes v. Chicopee, 138 Mass. 67.
 
 T CHAPTER VII. 
 
 LIABILITY, HOW CONFEKKED. 
 
 i 1. General rule. Charter conferring power. 
 
 2. Liability dependent on charter. 
 
 3. Charters in New York. 
 
 4. Corporations exempt by charter. 
 
 5. Liability based on agreement. 
 
 6. Power implies duty. 
 
 7. Theory of agency. 
 
 8. Liability dependent on funds. 
 
 1. Conferred by charter. Wherever a municipal corpora- 
 tion is clothed by charter with exclusive control of its streets, or 
 its common council or trustees are empowered to care/or and 
 repair the streets ; or are clothed with the powers of commis- 
 sioners of highways ; the corporation is liable to respond in 
 damages to the person injured by the wrongful or negligent 
 failure to keep such streets safe for the use of passengers 
 thereon. 
 
 Hutson v. New York, 9 N. Y. 163. 
 Griffin v. New York, 9 N. Y. 456. 
 Weet v. Brockport, 16 N. Y. 161, note. 
 Conrad v. Ithaca, 16 N. Y. 158. 
 Barton v. Syracuse, 37 Barb. 292. 
 Hyatt v. Rondout, 44 Barb. 385. 
 
 [72]
 
 Liability, how conferred. 73 
 
 Clark v. Lockport, 49 Barb. 580. 
 
 Davenport v. Ruckman, 37 N. Y. 568. 
 
 McCarthy r. Syracuse, 46 N. Y. 194. 
 
 Requa v. Rochester, 45 N. Y. 129. 
 
 Mosey v. Troy, 61 Barb. 580. 
 
 Hines v. Lockport, 50 N. Y. 236. 
 
 Diveny v. Elmira, 51 X. Y. 506. 
 
 Todd v. Troy, 61 N. Y. 506. 
 
 Weed r. Ballston, 76 N. Y. 329. 
 
 Albrittin v. Huntsville, 60 Ala. 486. 
 
 Selma v. Perkins, 68 Ala. 145. 
 
 Chicago v. Robbins, 2 Black, 418. 
 
 Denver v. Dunsmore, 7 Col. 328. 
 
 Delger v. St. Paul, 14 Fed. Rep. 567. 
 
 Parker v. Macon, 39 Ga. 725. 
 
 Sterling v. Thomas, 60 El. 264. 
 
 Bohen v. "Waseca, 32 Minn. 176. 
 
 Shartle v. Minneapolis, 17 Minn. 308. 
 
 Barnes v. Dist. Columbia, 91 U. S. 540. 
 
 (See also cases in different States cited in Barnes 
 
 v. Dist. Col., at page 551 ; also in 7 U. S. Digest 
 
 N. S., p. 594, 1 150.) 
 
 The examination of this rule involves so many prin- 
 ciples that some embarrassment arises as to the proper 
 order in which to consider them. 
 
 2. Liability depends on charter. The UabVity of a munici- 
 pal corporation to persons injured upon its streets by the 
 negligence of its officers depends upon the charter or statute 
 under which it was incorporated. 
 
 Yan Yranken v. Schenectady, 31 Hun, 516. 
 2 Dillon Mun. Cor. g 538. 
 Fulton v. Tucker, 5 T. & C. 621. 
 Nicholls v. Minneapolis, 30 Minn. 545. 
 
 And the extent of its power and liability is wholly in 
 the discretion of the sovereign power. 
 
 Barnes v. Dist. Col., 91 U. S. 540.
 
 74 Law. 
 
 3. Charters in New York. In New York the various 
 cities have special charters, in some of which the com- 
 mon council are made commissioners of highways, in 
 others are directly given power to repair streets, and in 
 some both provisions are united. As stated in the rule 
 above, the form of expression is immaterial. The vil- 
 lages, since 1870, are established under a general statute, 
 which makes the village a separate highway district, and 
 makes its trustees commissioners of highways, with 
 power " to discontinue, lay out, open, widen, alter, 
 change the grade or otherwise improve roads, avenues, 
 streets, lanes, crosswalks and sidewalks." 
 
 Session Laws of 1870, p. 694, \ 1. 
 
 Under this village act it has been held : 
 
 (a) That a village incorporated under it assumes the 
 duty of caring for and repairing its streets, and for its 
 neglect to do so is liable to a party injured. 
 
 Nelson v. Canister, 100 N. Y. 89. 
 
 (b) But is not under obligation to repair bridges, — 
 that that remains in the town. 
 
 Washburn v. Mount Kisco, 35 Hun, 329. 
 
 4. Municipalities exempt by charter. From the fact that 
 the liability is statutory, it follows that it may be lim- 
 ited by statute. This is in fact the case in various muni- 
 cipalities in this State, — for instance, in Brooklyn, 
 Binghamton, Schenectady and Ogdensburgh.
 
 Liability, how conferred. 75 
 
 (a) la Brooklyn id is provided that "The city of 
 Brooklyn shall not be liable in damages for any misfeas- 
 ance or non-feasance of the common council, or any 
 officer of the city or appointee of the common council, of 
 any duty imposed upon them or any or either of them, 
 by the provisions of this act, or of any other duty enjoined 
 upon them or any or either of them, as officers of govern- 
 ment, by any provision of this act ; but the remedy . . 
 shall be . . . against the members of the common 
 council, officer or appointee . . . if at all." 
 
 Session Laws of 1873, p. 1378, \ 27. 
 
 The constitutionality of this act was attacked in Gray 
 v. Brooklyn, 50 Barb. 365 ; 2 Abb. Dec. 267, upon the 
 ground that it impaired the obligation of a contract. It 
 was declared constitutional upon the ground that *tli3 
 acceptance of its original charter (Laws 1854, p. 860, § 1), 
 in which the power over highways was vested in the com- 
 mon council, was not a contract with the person injured, 
 but between the city and the State, by whose sovereign 
 act the charter had been conferred. 
 
 In that case, the court went so far as to hold that 
 " The object of the legislature is clear, and that was to 
 exonerate the city from liability on account of the omis- 
 sion and misconduct of its officers, and to impose all the 
 legal consequences of their acts directly upon the per- 
 sons who might be guilty of such official misconduct." 
 
 The full force put upon this statute in Gray v. Brook- 
 lyn has been somewhat modified in later cases. Such 
 
 are: 
 
 Fitzpatrick v. Slocum, 89 N. Y. 358. 
 Hardy r. Brooklyn, 90 N. Y. 436. 
 Vincent v. Brooklyn, 31 Hun, 122.
 
 76 Law. 
 
 In Fitzpatrick v. Slocum the court say : 
 
 " There must be a remedy where one is injured with- 
 out fault of his own by a defect in one of the streets or 
 bridges of the city, either against the city or some one of 
 its officers. The primary duty to keep its streets and 
 bridges in safe condition rests upon the city, and there 
 is a general obligation upon it to use proper care and 
 vigilance in putting and keeping its streets and bridges 
 in safe condition, and unless that duty has been plainly 
 devolved upon some officer or officers of the city against 
 whom a remedy for non-feasance can be had, the remedy 
 is against the city upon its obligation. That section does 
 not exempt the city from liability to discharge a duty resting 
 upon it, and which it has not devolved upon any one of its 
 officer ■«." 
 
 (b) The Binghamton charter differs from that of 
 
 Brooklyn, in this respect only, in that in Binghamton 
 
 there is no liability of the officer, except in case of gross 
 
 negligence. 
 
 Session Laws of 1867, p. 651, \ 6. 
 
 Under this it was held, in Fitzgerald v. Binghamton, 
 40 Hun, 332, that the reasoning of Fitzpatrick v. Slocum 
 applied there with still greater force, since gross negli- 
 gence of the officer did not appear, and hence there could 
 be no remedy but against the city ; and the three later 
 Brooklyn cases were followed. 
 
 (c) The Ogdensburgh charter makes the common 
 council commissioners of highways, but relieves the city 
 from liability to a person injured " by any defect in the 
 plan upon or in the manner in which any sidewalk in
 
 Liability, how conferred. 77 
 
 said city shall be constructed, or by reason of the same 
 
 not being in repair, or by slipping upon any snow or ice 
 
 thereon." 
 
 Session Laws of 1881, cb. 95, p. 112. 
 
 Under this it was hold in Piercy v. Averill, 37 Hun, 
 3G0, that the members of the common council may be 
 liable to the person injured. 
 
 (d) The Schenectady charter declares that the city 
 shall not be liable for injuries sustained by defective 
 sidewalks, unless actual notice of the defect shall have 
 been given to the common council or superintendent of 
 streets at least twenty -four hours previous to the injury. 
 It also provides that claims must be presented within 
 three months ; and actions brought within a year. 
 
 Laws of 1882, p. 359, ch. 294, § 4. 
 This act was declared constitutional in 
 
 Van Vranken v. Schenectady, 31 Hun, 516. 
 following Gray v. Brooklyn, supra. 
 
 5. Liability based on agreement. The theory upon which 
 the liability of a municipality to the person injured is a lid 
 based is that of an agreement or contract, express or implied, 
 between the sovereign power and the corporation, by which the 
 former confers valuable franchises a ii< 1 powers, and the bit', r 
 becomes bound to certain corresponding duties. 
 
 Cain r. Syracuse, 29 Hun, 105. 
 Ensign r. Livingston Co., 25 Hun, 20. 
 Weet r. Brockport, 1G N. Y. 161, note. 
 Maxmilian v. New York, 62 N.Y. 160.
 
 78 Law. 
 
 Buffalo v. Yattan, 1 Buff. Super. Ct. 485. 
 Aldrich v. Tripp, 11 R. I. 14. 
 Omaha v. Olmstead, 5 Neb. 446. 
 
 In Ensign v. Livingston Co. Supervisors tile court say : 
 
 " The surrender by the government of a portion of its 
 sovereign power to the municipality, if accepted by the 
 latter, has been regarded as affording a consideration for 
 an implied agreement, on the part of the corporation, to 
 perform the duties imposed by the charter, a neglect of 
 which will render the corporation liable . . . to a pri- 
 vate action at the suit of a person injured by such 
 neglect." 
 
 In Weet v. Brockport : 
 
 "Whenever an individual or a corporation, for a con- 
 sideration received from the sovereign power, has become 
 bound by covenant or agreement, express or implied, to 
 do certain things, such individual or corporation is liable, 
 in case of neglect to perform such covenant, to the per- 
 son injured." 
 
 In Maxmilian v. New York : 
 
 " The duty of keeping in repair streets, bridges and 
 other common ways of passage, and a liability for a 
 neglect to perform that duty, rest upon an express or im- 
 plied acceptance of the power and an agreement to do so. 
 It is a duty with which the city is charged for its own 
 corporate benefit, to be performed by its own agents, as 
 its own corporate act."
 
 Liability, how conferred. 79 
 
 6. Power implies duty. In New York the principle has 
 been long recognized that : 
 
 " Where a public body or officer is clothed with power to 
 do an act which concerns the public interest or the rights of 
 third persons, the execution of the power may be insisted on 
 as a duty, though the statute creating it be only permissive in 
 its terms." 
 
 This is illustrated in the following, among many cases. 
 
 New York v. Furze, 3 Hill, 612. 
 Hines v. Lock port, 60 Barb. 378. 
 Hutson v. New York, 9 N. Y. 163. 
 Kekberg v. New York, 91 N. Y. 137. 
 Nebraska City v. Campbell. 2 Black, 590. 
 
 7. Theory of agency. The liability of a municipal cor- 
 poration/or the negligent performance of a duty imposed upon 
 its trustees or common council, is based upon the doctrine that 
 such officers are, in their capacity as commissioners of high- 
 ways, to be regarded as agents of the corpoi'ation. 
 
 Conrad v. Ithaca, 16 N. Y. 158. 
 Hyatt v. Kondout, 44 Barb. 385. 
 Todd r. Troy, 61 N. Y. 506. 
 Weed v. Ballston, 76 N. Y. 329. 
 Sewell v. Cohoes, 75 N. Y. 45. 
 
 And other cases cited under (1) supra. 
 
 8. Liability dependent on funds. The absence of the m 
 sary funds, and of the legal mains of procuring them, will excuse
 
 80 Law. 
 
 the non-performance of the duty of a municipal corporation to 
 keep its streets safe for travel. 
 
 Hines v. Lockport, 50 N. Y. 236. 
 Peach v. Utica, 10 Hun, 477. 
 Albrittin v. Huntsville, 60 Ala. 486. 
 Delger v. St. Paul, 14 Fed. Eep. 567. 
 Shartle v. Minneapolis, 17 Minn. 308. 
 
 But absence of funds alone will not excuse, provided 
 the city has power to raise funds. 
 
 Peach v. Utica, supra. 
 La Duke v. Fultonville, 20 W. Dig. 453. 
 Pomfrey v. Saratoga, 31 Hun, 607. 
 Ellis v. Lowville, 7 Lans. 434. 
 
 The same rule and exception applied with respect to 
 
 the liability of highway commissioners under the old law 
 
 in New York, ( [ ) and that of towns under the act of 
 
 1881.( 2 ) 
 
 (') Adsit v. Brady, 4 Hill, 630. 
 
 Hover v. Barkhoof, 44 N. Y. 113. 
 
 Warren v. Clement, 24 Huu, 472. 
 
 Smith v. Wright, 24 Barb. 170. 
 
 Garlinghouse v. Jacobs, 29 N. Y. 297. 
 (2) Eveleigh v. Hounsfield, 34 Hun, 140. 
 
 Monk v. New Utrecht, 104 N. Y. 552. 
 
 (a) Burden of proof . In Eveleigh v. Hounsfield, supra, 
 it was held that the burden of alleging and proving funds 
 in a town is upon the person seeking to recover against 
 the town. 
 
 The three cases cited as sustaining that doctrine are 
 People v. Adsit, 2 Hill, 619, and Garlinghouse v. Jacobs, 
 and Warren v. Clement, supra. 
 
 Upon examination it would seem that this position is 
 sustained by only the first of those cases, in which the
 
 Liability, how conferred. 81 
 
 question arose upon the sufficiency of an indictment, and it 
 was thus distinguished in Adsit v. Brady, infra. 
 
 In the following cases it was held that the burden of 
 proving lack of funds was upon the defendant. 
 
 Adsit v. Brady, 4 Hill, 630. 
 
 Ellis v. Lowville, 7 Lans. 434. 
 
 Weed v. Ballston, 7G N. Y. at p. 335. 
 
 Hines r. Lockport, 50 N. Y. 236. 
 
 Day v. Crossman, 1 Hun, 570. 
 
 Hover v. Barkhoof, 44 N. Y. 113, at p. 118. 
 
 Pomfrey v. Saratoga, 34 Hun, 607. 
 
 For the purpose of showing funds, it is proper to 
 prove the making of repairs the day after the accident. 
 
 Morrell v. Peck, 88 N. Y. 398. 
 
 6
 
 CHAPTER VIII. 
 
 PUBLIC AND CORPORATE FCJNCTIONS. 
 
 1. Dual powers. 
 
 2. Care of streets a corporate duty. 
 
 3. Discretionary acts. 
 
 4. Negligent plan. 
 
 5. Ministerial acts. 
 
 6. Care of excavations, &c! 
 
 7. Quasi corporations. 
 
 1. Dual powers. A municipal corporation possesses two 
 hinds of functions ; one governmental and political in their 
 character, and solely for the public benefit and protection, the 
 other private, exercising as a corporation, private franchise 
 powers and privileges, which belong to it for its immediate 
 corporate benefit. While in the exercise of the former the cor- 
 poration is a municipal government, and while in the exercise 
 of the latter is a corporate, legal individual. 
 
 Lloyd v. New York, 5 N. Y. 369. 
 
 Wilson v. New York, 1 Denio, 595. 
 
 Bailey v. New York, 3 Hill, 531. 
 
 Rochester White Lead Company v. Rochester, 3 
 
 N. Y. 463. 
 Maxmilian v. New York, 62 N. Y. 160. 
 Welsh v. Rutland, 67 Vt. 228. 
 Hill v. Boston, 122 Mass. 344. 
 Eastman v. Meredith, 36 N. H. 284. 
 Mills v. Brooklyn, 32 N. Y. 489. 
 [82]
 
 Public and Corporate Functions. 83 
 
 Radcliffs Ex're v. New York. 4 N. Y. 195. 
 Hines r. Lockport. 50 N. Y. 236. 
 Little Rock v. Willis, 27 Ark, 572. 
 Elgin v. Kimball, 90 HI. 356. 
 (See also many cases cited in briefs in Clemence v. 
 Auburn, 66 N. Y. 334.) 
 
 In the exercise of the former kind it is said that a 
 corporation acts in a judicial or semi-judicial capacity, 
 under the latter in an administrative ; that it is not 
 responsible to a person injured by its manner of exercis- 
 ing the former, but of the latter it is. 
 
 The principle in both its branches is excellently 
 stated, with citations of authorities, in the opinion in 
 Hines v. Lockport, 50 N. Y. at p. 238 : 
 
 "Where power is conferred on public officers, or a 
 municipal corporation, to make improvements, — such as 
 streets, sewers, Ac, and keep them in repair, — the duty 
 to make them is quasi-judicial or discretionary, involving 
 a determination as to their necessity, requisite capacity, 
 location, &c, and for a failure to exercise this power, or 
 an erroneous estimate of the public needs, no civil action 
 is maintainable. But when this discretion has been ex- 
 ercised, and the street, sewer, or other improvement has 
 been made, the duty to keep it in repair, so as to pre- 
 vent it from being dangerous to the public, is ministe- 
 rial, and for a negligent omission to perform this duty, an 
 action lies by the party injured." 
 
 2. Care of streets a corporate duty. The duty which the 
 city oives to the traveller to keep its streets in a safe condition
 
 84 Law. 
 
 for public travel, is a corporate as distinguished from a 
 governmental duly. 
 
 Ehrgott v. New York, 96 N. Y. 264. 
 Conrad v. Ithaca, 16 N. Y. 158. 
 Maxmilian v. New York, 62 N. Y. 160.' 
 
 3. Discretionary acts. It may be said, generally, that a 
 municipal corporation is not liable for the plans adopted by it 
 in the making of public improvements, (*) or for the exercise of 
 its discretion as to what improvements shall be made, or 
 for its municipal regulations generally. ( 2 ) 
 
 (i) Toolan v. Lansing, 38 Mich, 315. 
 
 Bannagan v. Dist. Col., 2 Mackey, 285. 
 
 Eozell v. Anderson, 91 Ind. 591. 
 ( 2 ) Henderson v. Sandefur, 11 Bush (Ky.)550. 
 
 Cole v. Medina, 27 Barb. 218. 
 
 Thus it can incur no liability for failure to open, fill, 
 or grade streets, 
 
 Lynch v. New York, 76 N. Y. 60. 
 Hughes v. Baltimore, Taney, 243. 
 
 or to construct sidewalks, 
 
 Saulsbury v. Ithaca, 24 Hun, 12; 94 N. Y. 27. 
 
 or cross-walks, 
 
 Williams v. Grand Rapids, (Mich.) 33 Alb, L. J. 
 
 237. 
 Easton v. Neff, (Pa.) 29 Alb. L. J. 372. 
 
 or improve streets in sparsely-settled parts, 
 
 Henderson v. Sandefur, 11 Bush (Ky.) 550.
 
 Purlic and Corporate Functions. 85 
 
 or light streets, 
 
 Lyon v. Cambridge, 186 Mass. 419. 
 Freeport v. Isbell, 83 111. 440. 
 
 or appoint inspectors of steam boilers, 
 
 Mead v. New Haven. 40 Conn. 72. 
 or superintendents of streets, 
 
 King v. Chapin, 23 W. Dig. 528. 
 
 or make ordinances, 
 
 Bochester White Lead Co. v\ Rochester, 3 N. Y. 463. 
 
 or construct sewers. 
 
 Kavanagh v. Brooklyn, 38 Barb. 232. 
 Mills v. Brooklyn, 32 N. Y. 489. 
 Wilson v. New York, 1 Denio, 595. 
 
 It is not liable for altering the grade of a sidewalk, 
 
 Kavanagh v. Brooklyn, supra, 
 WaddeU v. New York, 8 Barb. 95. 
 
 or for the plan of a sidewalk, 
 
 Urquhart r. Ogdensburgh, 91 N. Y. 67 ; 97 Id. 238. 
 Watson v. Kingston, 26 W. Dig. 15. 
 
 or of a sewer, 
 
 Hardy v. Brooklyn, 7 Abb. N. C. 403. 
 
 or for regulating the cleaning of sewers, 
 Lloyd v. New York, 5 N. Y. 369.
 
 86 Law. 
 
 or for blasting rocks for sewers, in absence of negligence. 
 Murphy v. Lowell, 128 Mass. 396. 
 
 In Urquhart v. Ogdensburgh, 91 N. Y. 67, it was held 
 that the approval of the plan of a sidewalk made by an 
 individual was as much a judicial act as the design of it. 
 
 In the same case, on a second appeal (97 N. T. 238), it 
 was held that approval cannot be assumed from failure 
 to disapprove. 
 
 See also Garrett v. Buffalo, 26 Week. Dig. 257. 
 
 4. Negligent plan. A municipal corporation is liable 
 for negligence in the plan of an improvement, as well as in 
 the manner of executing the work. 
 
 North Yernon v. Voegler, (Ind.) 2 No. E. B. 82 ; 
 
 32 Alb. L. J. 466. 
 Ferguson v. Davis County, 57 Iowa, 601. 
 Gould v. Topeka, 32 Kan. 485. 
 Bice v. Evansville, (Ind.) 35 Alb. L. J. 138. 
 
 A similar principle seems to have been recognized in 
 Clemence v. Auburn, 66 N. Y. 334, where a portion of a 
 sidewalk had been built on a new grade, and, at the place 
 where the new part approached the old, a stone had been 
 placed with a much steeper grade than the rest of the 
 walk. This had been directed by the chairman of the 
 street committee of the common council, and the court 
 held it not a judicial act, upon the ground that there 
 could be no presumption of authority in the officer. 
 
 But the court say :
 
 Public and Corporate Functions. 87 
 
 " It is questionable whether, the absolute duty being 
 imposed by law upon the city to construct and keep in 
 repair the sidewalks, the city would not be liable to any 
 one travelling thereon for injuries resulting from an im- 
 proper construction of the walks, whether in respect to 
 grade, material or other thing ; in other words, whether, 
 the duty being conceded, it is not absolute to make them 
 reasonably safe for public travel." 
 
 In Hubbell v. Yonkers, 35 Hun, 349, the injury was 
 caused by a frightened horse going over an unprotected 
 embankment beside the street, some twelve feet high, and 
 which had been there ten years. 
 
 The court, after citing some cases to the effect that a 
 city is not liable for the plan of construction of its streets, 
 say : 
 
 " These cases do not decide that a municipal corpora- 
 tion may escape liability for a defective construction of 
 an improvement, merely because it is made in accordance 
 with an approved plan. If a bridge over a ravine or a 
 water stream was built by a city or a village, and left 
 without a side guard, or a street was constructed on a 
 causeway high above the natural level of the ground, and 
 left without side rails or protection, responsibility for 
 injuries resulting from their absence could not be avoided 
 by showiug that they were made in accordance with the 
 plans. 
 
 " Such a doctrine, carried to its legitimate conclusion 
 and result, might release all municipal corporations from 
 the duty imposed on them to maintain the streets within 
 their limits in a safe condition for travel in the usual 
 modes."
 
 88 Law - 
 
 In North Yernon v. Voegler, the court say : 
 
 " Suppose that a common council of a city determine 
 to build a sewer and cover it with reeds, can it be pos- 
 sible that the corporation can escape liability on the 
 ground that the common council erred in devising a 
 
 plan? 
 
 " Or suppose the common council undertake to con- 
 duct a large volume of water through a culvert capable 
 of carrying less than one-tenth of the water conducted 
 to it by the drains constructed by the city, can re- 
 sponsibility be evaded on the ground of an error of 
 judgment ? 
 
 "Again, suppose the common council to 
 
 devise a plan for' a bridge, that will require tim- 
 bers so slight as to give way beneath the tread of a 
 child, can the city escape liability on the ground 
 that there was only an error of judgment in devising 
 the plan?" 
 
 5. Ministerial acts. When the discretionary power of a 
 municipal corporation is put in exercise, it is responsible for 
 the manner of performance. 
 
 Barton v. Syracuse, 37 Barb. 292. 
 
 Ludlow v. Yonkers, 43 Barb. 493. 
 
 Lacour v. N. Y., 3 Duer, 406. 
 
 Bochester White Lead Co. v. Bochester, 3 N. Y. 
 
 463. 
 Buffalo and Hamburgh Turnpike Co. v. Buffalo, 
 
 1 T. & C. 537. 
 Piercy v. Averill, 37 Hun, 360. 
 Nims v. Troy, 59 N. Y. 500.
 
 Public and Corporate Functions. 89 
 
 McCarthy v. Syracuse, 40 N. Y. 194. 
 Hubbell v. Yonkers, 35 Hun, 319. 
 McDonough r , Virginia City, G Nev. 90. 
 Hines v. Lockport, 50 N. Y. 230. 
 
 6. Care of excavations, etc. Important illustrations of 
 the above rule ocour in case of excavations, &c, made or 
 permitted in the streets. As has been commented on 
 before, it is necessary that the obstructing of the street 
 for building purposes and the excavating it for various 
 purposes, partly by the city itself, partly by its licensees, 
 should be done. The fact of obstructing in the one case, 
 in the other of permitting, is not in itself necessarily 
 wrongful ; but under such circumstances the city is 
 " bound to protect all prudent persons against accident." 
 
 Covington v. Bryant, 7 Bush (Ky.) 248. 
 
 See also Lacour v. New York, 3 Duer, 400. 
 
 Storrs v. Utica, 17 N. Y. 104. 
 
 Brusso v. Buflalo, 90 N. Y. 079. 
 
 Grant r. Brooklyn, 41 Barb. 381. 
 
 Platz v. Cohoes, 89 N. Y. 219. 
 
 Osborn v. Union Ferry Co., 53 Barb. 029. 
 
 Port Jervis v. First Nat. Bk., 90 N. Y. 550. 
 
 Groves v. Kochester, 39 Hun, 5. 
 
 McMahon v. Second Ave. K. E. Co., 75 N. Y. 231. 
 
 Seneca Falls v. Zalinski, 8 Hun, 571. 
 
 Lemont v. Eood, 18 Bradw. (111. Ap.) 245. 
 
 7. Quasi-corporations. The distinction is tabu tin it it is 
 the governmental power alone that is possessed by count* 
 towns, iohich, like assembly and senatorial districts, school 
 districts, &c, are men!;/ political divisions organized for the 
 convenient exercise of the political power of the State. 
 
 Ensign r. Livingston Co., 25 Hun, 20. 
 
 People ex reL Loomis r. Little Valley, 75 N. Y. 310. 
 
 Morey v. Newfane, 8 Barb. 015.
 
 90 Law. 
 
 And in California the same is true of cities. 
 
 Winbigler v. Los Angeles, 45 Cal. 36. 
 Tranter v. Sacramento, 61 Cal. 271. 
 
 These are often called quasi corporations. 
 
 Barnes v. District of Columbia, 91 U. S. 540. 
 Donalson v. San Miguel Co., 1 New Mex. 263. 
 
 "While a liability is under many jurisdictions imposed 
 upon these quasi corporations with regard to repair of 
 streets, it is always expressly prescribed by statute, 
 under the sovereign power of the State. The element of 
 liability to be implied from a power, under an agreement, 
 upon a consideration, is wanting. 
 
 Illustrative of the liability thus imposed by statute 
 upon political divisions may be mentioned several of the 
 New England and other States, in which the care of roads 
 and bridges is vested in the several towns, and a cause of 
 action is expressly given by statute against a town for 
 neglect of repair. But the courts in those States hold 
 that no action lies except by force of the statute giving it. 
 
 Bigelow v. Randolph, 14 Gray, 541. 
 
 Chidsey v. Canton, 17 Conn. 475. 
 
 Beed v. Belfast, 20 Maine, 246. 
 
 Eastman v. Meredith, 36 N. H. 284. 
 
 Frazer v. Lewiston, 76 Me. 531. 
 
 Altnow v. Sibley, 30 Minn. 186. 
 
 Yeager v. Tippecanoe, 81 Ind. 46. • . 
 
 It follows that in absence of such a statute there is no 
 liability to the person injured. 
 
 Ensign v. Livingston Co., 25 Hun, 20. 
 White v. Chowan Co. Comrs., 90 N. C. 437. 
 Clark v. Adair Co., 79 Mo. 536.
 
 Public and Corporate Function-. 91 
 
 In New York, prior to 18 A, the only remedy of per- 
 sons injured upon town highways w;is against the com- 
 missioners of highways. 
 
 By Session Laws of 1881, ch. 700, this liability in the 
 first instance was transferred to the town, with right of 
 recovery over against the commissioners in case the 
 injury is caused by their negligence. 
 
 This act was held constitutional in 
 
 Bidwell v. Murray, 40 Hun, 190. 
 
 But that it is not retroactive in its effect, in 
 Frasier v. Tompkins, 30 Hun, 168.
 
 CHAPTER IX. 
 
 FOB WHOSE ACTS LIABLE. 
 
 A. Agents and Servants. 
 
 1. In general. 
 
 2. Ultra vires. 
 
 B. Independent Officeks and Departments. 
 
 1. When city not liable. 
 
 2. When city liable. 
 
 3. Respondeat superior. 
 
 C. Independent Contkactoes. 
 
 1. Work not dangerous. 
 
 2. Same. Supervision of officer. 
 
 3. Work dangerous. 
 
 4. Bules subject to liability for care of streets. 
 
 D. Licensees. 
 
 1. License lawful. 
 
 2. License unlawful, but injury by mode of exercise. 
 
 3. License for dangerous thing. 
 
 4. Subject to duty over streets. 
 
 E. Otheb Persons. 
 
 1. Depends on notice. 
 
 2. Acceptance by city. 
 
 A. Agents and Servants. 
 
 1. In general. That a municipal corporation is liable 
 to the individual injured by the act or neglect of its ser- 
 vants or agents is but saying that it is responsible for its 
 own act or neglect, since it can act only through them. 
 
 [92]
 
 For whose Acts liable. 93 
 
 The*, acts of agents which bind the corporation are not, 
 however, without limitation ; and questions often arise as 
 to the persons for whose acts the city is liable under the 
 dDctrine of respondeat superior. 
 
 2. Ultra vires. A municipal corporation is not liable to 
 an individual whose injury is the result of illegal acts of its 
 agents or officers. 
 
 Boom v. Utica, 2 Barb. 104. 
 Albany v. Cunliff, 2 N. Y. 165. 
 Herrington v. Corning 51 Barb. 396. 
 Smith v. Rochester, 76 N. Y. 506. 
 Davies v. New York, 4 Civ. Pro. 290. 
 
 In Boom v. Utica, the common council, assuming a 
 power to do so from the charter provisions for the 
 removal of nuisances, ordered the placing of certain 
 persons, sick with a contagious disease, in a building 
 owned by the plaintiff, without his consent. Held, 
 ultra vires, and that no recovery could be had against 
 the city. 
 
 In Albany v. Cunliff, the officer and agents of a city 
 assumed to build a bridge by authority of an unconstitu- 
 tional statute. The bridge fell by reason of its negligent 
 construction. Held, that a person injured had no remedy 
 against the city. 
 
 In Herrington v. Corning, the injury was caused by the 
 decayed condition of a sidewalk, which the village trus-
 
 94 Law. 
 
 tees had constructed contrary to the provision of the 
 statute of incorporation. 
 
 B. Independent Officees and Departments. 
 
 1. When city not liable. A municipal corporation is not 
 liable for the wrongful or negligent acts of public officers or 
 departments {or their employees), whose duties are prescribed 
 by the State, icho are not under the supervision of the cor- 
 poration, and whose duties do not enure to the corporate benefit ; 
 though they be appointed by the corporation. Thus held of 
 
 Fire department. 
 
 Burrill v. Augusta, (Me.) 4 Eastern Reporter, 
 
 615. 
 Wild v. Paterson, (N. J.) 2 Eastern Reporter, 
 
 808. 
 Woolbridge v. New York, 49 How. Pr. 67. 
 Robinson v. Evansville, 87 Ind. 334. 
 McKenna v. St. "Louis, 6 Mo. Ap. 320. 
 
 Member or employee of fire department. 
 
 Smith v. Rochester, 76 N. Y. 506. 
 
 Wilcox v. Chicago, 107 111. 334 ; 29 Alb. L. J. 
 
 37. 
 Freeman v. Philadelphia, 13 Phila. 154. 
 Welsh v. Rutland, 56 Vt. 228 ; 30 Alb. L. J. 
 
 163. 
 Edgerly v. Concord, 59 N. H. 78, 341. 
 
 Police department. 
 
 Sinclair v. Baltimore, 59 Md. 592.
 
 For whose Acts liable. 95 
 
 Policeman. 
 
 McKay v. Buffalo, 9 Hun, 401 ; 74 N. Y. 619. 
 
 Citing Stewart v. New Orleans, 9 La. An. 
 461. 
 
 Buttrick v. Lowell, 1 Allen, 172. 
 
 Dargan v. Mobile, 31 Ala. 469. 
 Kunz v . Troy, 30 Hun, G15, distinguishing Reh- 
 
 berg v. New York, 91 N. Y. 137. 
 
 Department of public instruction. 
 
 Ham v. New York, 70 N. Y. 459. 
 
 Board of health. 
 
 Bamber v. Rochester, 26 Hun, 587. 
 
 Board of revision and correction of assessments. 
 Tone v. New York, 70 N. Y. 157. 
 
 Department of buildings. 
 
 Connors v. New York, 11 Hun, 439. 
 
 Department of docks. 
 
 Bigler v. New York, 5 Abb. N. C. 51. 
 
 Commissioners of charities and correction. 
 
 Maxmilian i\ New York, 62 N. Y. 160. 
 (Principal case.) 
 
 Servant of board of public works. 
 
 Condict v. Jersey City, 46 N. J. L. 157.
 
 96 Law - 
 
 Commissioners to build docks in canal. 
 
 New York v. Lumber Co., 71 N. Y. 580. 
 
 Mayor of city. 
 
 Cumberland v. Willison, 50 Md. 138. 
 
 Trustees of village. 
 
 Martin v. New York, 1 Hill, 545. 
 
 Fire insurance patrol. 
 
 Boyd v. Insurance Patrol of Philadelphia, 35 Alb. 
 L. J. 218. 
 
 2. When city liable, (a) But is liable when it has the 
 appointment and supervision, and zohen the duty to be 
 performed is for the benefit of the corporation. 
 
 Engineers and water commissioners. 
 
 New York v. Bailey, 2 Denio, 433. 
 
 Board of health. 
 
 Tormey v. New York, 12 Hun, 542. 
 
 Trustees of Brooklyn bridge. 
 
 Walsh v. New York, 41 Hun, 299. 
 
 (b) And where the duty is imposed on the corporation, and 
 the officers or departments are simply made by charter agents 
 of the corporation. 
 
 Martin v. New York, supra. 
 Polley v. Buffalo, 20 W. Dig. 163.
 
 For whose Acts liable. 97 
 
 Commissioners of public works. 
 
 Niven v. Rochester, 76 N. Y. 619. 
 
 Board of public works. 
 
 Barnes v. District of Columbia, 91 U. S. 540. 
 
 Park Commissioners. 
 
 Ekrgott v. New York, 96 N. Y. 264. 
 
 Commissioners of water-works. 
 
 Deyoe v. Saratoga, 3 T. & C. 504. 
 
 Executive board. 
 
 Groves v. Rochester, 39 Hun, 5. 
 
 Water board. 
 
 Pettengill v. Yonkers, 25 W. Dig. 45. 
 
 3. Respondeat superior. This non-liability for acts of 
 independent officers and departments is based on the doc- 
 trine of respondeat superior, which presupposes a power to 
 control and direct the persons at fault. Liability, where it 
 exists, " is based upon the right which the employer has 
 to select his servants, to discharge them if not competent, 
 or skillful, or well-behaved, and to direct and con- 
 trol them while in his employ (Kelly v. New York, 
 11 N. Y. 432). The rule has no application to a case in 
 which this power does not exist (Blake v. Ferris, 5 N. Y. 
 48)." 
 
 Maxmilian r. New York. 62 N. Y. 160. at p. 163.
 
 98 Law. 
 
 C. Independent Contractors. 
 
 1. Work not dangerous. It is a well established general 
 rule, that where work not of itself dangerous is being 
 done under contract, if there is any negligence, it is that 
 of the contractors or persons under them, and they are 
 alone responsible. 
 
 " Where the obstruction or defect caused or created in tlie 
 street is purely collateral to the loork contracted to be done, and 
 is entirely the result of the wrongful acts of the the contractor 
 or his ivorkmen, tlie rule is that the employer is not liable." 
 
 Water Company v. Ware, 16 Wall. 566, at p. 576. 
 
 Dressell v. Kingston, 32 Hun, 526, at p. 535. 
 
 Blake v. Ferris, 5 N. Y. 48. 
 
 Pack v. New York, 8 N. Y. 222, 
 
 Kelly v. New York, 11 N, Y. 432. 
 
 Buffalo v. Holloway, Seld. Notes, 25. 
 
 King v. N. Y. C. & H. E. E. Co., 66 N. Y. 181. 
 
 McCafferty v. Spuyten Duyvil, &c. E. E. Co., 61 
 
 N. Y. 178. 
 Pierrepont v. Loveless, 72 N. Y. 211. 
 Martin v Tribune Asn., 30 Hun. 391. 
 Gourdier v. Cormack, 2 E. D. Smith, 254. 
 Gardner v. Bennett, 38 Super. 197. 
 Burmeister v. N. Y. El. E. E. Co. 47 Super. 264. 
 East St. Louis v. Giblin, 3 El. Ap. 219. 
 Herrington v. Lansingburgh, 36 Hun, 598. 
 
 In Blake v. Ferris, the defendants were licensees to 
 -construct a sewer in a street, who contracted with another 
 person to do the work, and the injury happened through 
 the negligence of the latter in leaving the excavation 
 open and unguarded. It was held as above ; also, that a 
 stipulation for guarding contained in the license did not 
 enure to the benefit of the person injured, as against the 
 licensee.
 
 For whose Acts liable. 99 
 
 In Pack v. New York, the city was held not liable for 
 the negligence of a sub-contractor in conducting the blast- 
 ing of rock so that pieces of rock struck a house and 
 injured its inmates. 
 
 Also held, that a clause providing that the contractor 
 should conform to further directions of the corporation, 
 referred only to results, not to methods, and did not change 
 the relation so as to make the contractor and his work- 
 men agents of the city. 
 
 2. Supervision by officers. The above rule is in accord- 
 ance with the doctrine of respondeat superior. Upon the 
 same principle it is further held that : 
 
 The rule is not otherwise, although the contract provides 
 that the ivork should be done under the direction and to the sat- 
 isfaction of certain officers of the corpora I ion, or other person 
 selected for that purpose. 
 
 Kelly v. New York, 11 IS. I. 432. 
 Gardner v. Bennett, 38 Super. 197. 
 Groves v. Eochester, 39 Hun, 5. 
 Clare v. Nat'l City Bank, 40 Super. 104. 
 Herrington v. Lansingburgh, 36 Hun, 598. 
 Scbool District of Erie v. Fuess, (Pa.) 25 Alb. L. 
 J. 136. 
 
 3. Work dangerous. Where, however, the injury is not 
 caused by the negligent way in which the icork is done, bid is the 
 result of the work itself, contracted for, however skillfully 
 performed, then the principal is liable. 
 
 "When the obstruction or defect which occasioned 
 the injury results directly from the acts which the con-
 
 100 Law. 
 
 tractor agreed and was authorized to do, the person who 
 employs the contractor and authorizes him to do those 
 acts, is equally liable to the injured party." 
 
 Water Company v. Ware, 16 Wall. 566. 
 
 Dressel v. Kingston, 32 Hun, 526. 
 
 StoiTs v. Utica, 17 N. Y. 104. 
 
 McCafferty v. Spuyten Duyvil E. R. Co., 61 N. Y. 
 
 178. 
 Baxter v. Warner, 6 Hun, 585. 
 Lockwood v. New York, 2 Hilton, 66. 
 Maxmilian v. New York, 62 N. Y. 160. 
 Lacour v. New York, 3 Duer, 406. 
 Hawxhurst v. New York, 43 Hun, 588. 
 Robbins v. Chicago, 4 Wall. 657. 
 Joliet v. Harwood, 86 111. 110. 
 Circleville v. Neuding, 41 Ohio St. 465. 
 Prentiss v. Boston, 112 Mass. 43. 
 Baltimore v. O'Donnell, 53 Md. 110. 
 Logansport v. Dick, 70 Ind. 65. 
 
 In Storrs v. Utica, and Dressel v. Kingston, the 
 injury was caused by an unprotected excavation left by 
 employees of a contractor. The court say, in the former 
 case, and quote in the latter : " The performance of the 
 work necessarily renders the street unsafe for night 
 travel. This is a result which does not at all depend on 
 the care or negligence of the laborers employed by the 
 contractor. The danger arises from the very nature of 
 the improvement; and if it can be averted only by special 
 precaution, such as placing guards or lighting the street, 
 the corporation which has authorized the work is plainly 
 bound to take these precautions." 
 
 4. Primary duty of city to care for streets. In applying 
 the principle of the non-liability of a municipal corpora- 
 tion for the acts of an independent contractor, there must
 
 For whose Acts liable. 101 
 
 always be borne in mind the primary duty resting upon 
 such corporations to care for their streets. 
 
 The position of a municipal corporation in respect 
 to work upon its streets is well stated in a Tennessee 
 case : 
 
 " It is the duty of the corporation to use care and vigilance 
 in the selection of agents, servants and contractors, in making 
 
 improvements, to retain the requisite degree of control and 
 superintendence over them in the performance of their duty ; 
 and to enforce such measures of vigilance and care as ivill 
 guard against exposure to injuries of any kind" 
 
 Nashville r. Brown, 9 Heisk. 1. 
 
 And in Eh ode Island : 
 
 " The duty resting upon a town or city to keep its 
 highways safe and convenient for travel is a public duty, 
 and it has no power, unle:s authorized by statute, to 
 divest itself, either by contract or ordinance, of its 
 capacity to discharge this duty." 
 
 Watson v. Tripp, 11 R. I. 98. 
 
 In accordance with these principles it has been held 
 in New York and other States that : 
 
 "A municipal corporation, owing to the public the 
 duty of keeping its streets in a safe condition for travel, 
 is liable to persons receiving injury from the neglect to 
 keep proper lights and guards at night around an excava- 
 tion which it has caused to be made in the street,
 
 102 Law. 
 
 whether it has or has not contracted for such precautions 
 with the persons executing the work." 
 
 Storrs v. mica, 17 N. Y. 104. 
 
 Osborn v. Union Ferry Co. , 53 Barb. 629. 
 
 Dressel v. Kingston, 32 Hun, 526. 
 
 Buffalo v. Holloway, 7 N. Y. 493. 
 
 Welsh v. St. Louis, 73 Mo. 71 ; 25 Alb. L. J. 137. 
 
 Jacksonville v. Drew, 19 Flor. 106. 
 
 Wilson v. WheeliDg, 19 W..Va. 323. 
 
 In the last case cited, held, that a city is liable in 
 such a case, though it had no control over the workmen, 
 and had made a contract by which the contractor 
 assumed all liability for accidents. 
 
 D. Licensees. 
 
 1. License lawful. Consent by a municipal corporation, in 
 pursuance of lawful authority, to a citizen to excavate or 
 obstruct a public street, does not make it responsible for the 
 wrongful or negligent manner in which its licensee and his 
 employees do the work. 
 
 Port Jervis v. First Nat'l Bank, 96 N. Y. 550. 
 Masterton v. Mount Vernon, 58 N. Y. 391.. 
 Dorlon v. Brooklyn, 46 Barb, 604. 
 James' Adm'x v. Harrodsburgh, (Ky.) 35 A. L. J. 
 
 386. 
 Scanlon v. New York, 12 Daly, 81. 
 
 2. Injury by mode of exercise. So even if the granting of 
 the license were unlawful, but the injury result from the negli- 
 gent mode in ivhich the licensee exercised the privilege granted 
 to him, such mode of exercise being no part of the thing 
 
 licensed. 
 
 Coben v. New York, 33 Hun, 404. 
 
 See 43 Hun, 345. 
 
 In that case the license was to keep a wagon on the 
 street in front of a grocery store. The licensee kept the
 
 For whose Acts liable. 103 
 
 wagon near the curb with the thills turned up and 
 fastened with a string. A passing wagon struck the 
 wagon and broke the string, whereby the thills fell and 
 killed a person walking on the sidewalk. 
 
 3- License for dangerous thing-. Wfu re, however, the license 
 was unlawful and the injury was a result of it, the licensor 
 would undoubtedly he liable. 
 
 Estelle v. Lake Crystal, 27 Minn. 243. 
 Little o. Madison, 42 Wis. 643. 
 
 In the former case, the injury was caused by a plat- 
 form which had been built in a street with consent of the 
 city ; in the latter, the city licensed an exhibition of bears 
 in the street, at which horses were frightened. 
 
 4. Subject to duty as to streets. The rule first above stated 
 is subject to the general liability of the corporation to Tceep its 
 streets safe for travel. And the fact of the permit is more or 
 less evidence of notice to the city. 
 
 Upon this general ground, cities have often been held 
 liable for injuries caused by obstructions or excavations 
 created by their licensees. 
 
 Davenport r. Ruckman, 37 N. Y. 568. 
 
 Wendell r. Troy, 4 Keyes, 261. 
 
 Masterton v. Mt. Vernon, 58 N. Y. 391. 
 
 Indianapolis r. Doherty, 71 Ind. 5. 
 
 Russell v. Columbia, 74 Mo. 480. 
 
 Cusick v. Norwich, 40 Conn. 375. 
 
 Savannah r. Donnelly, 71 Ga. 258. 
 
 Campbell r. Stillwater, (Minn.) 31 Alb. L. J. 119. 
 
 Wilson r. Watertown, 5 T. & C. 579 ; 3 Hun, 508. 
 
 People ex ?•>■/. Markey r. Brooklyn, 65 N. Y. 349. 
 
 Hirsch r. Lullalo, 21 W. Dig. 312.
 
 104 Law. 
 
 In each of the four last cases cited, the injury was 
 caused by the act of a railroad company, which, as a con- 
 dition of laying tracks in the street, assumed the duty of 
 keeping them safe. Held, that this did not relieve the 
 city of its obligation for care in keeping the streets safe 
 for travel. 
 
 In Indianapolis v. Doherty, the court say : 
 
 "When the city issues a building permit to use and 
 obstruct a street, it is the duty of* the corporate authori- 
 ties to see to it that the person she authorizes to use her 
 streets shall properly guard and protect such obstruc- 
 tion." 
 
 And in Masterton v. Mt. Vernon : 
 
 "Where the officers of a municipal corporation, in 
 pursuance of a lawful authority, give permission to a lot- 
 owner to connect his lot with a sewer, such officers are 
 required to exercise reasonable care to prevent injury, 
 and for the omission thereof the corporation is liable." 
 
 E. Other Persons. 
 
 1. Depends on notice. Speaking generally, a city is not 
 liable for the acts of persons acting ivithout license, except after 
 due notice to charge it under its general liability to keep streets 
 in safe condition for travel. 
 
 Griffin v. New York, 9 N. Y. 456. 
 McGinity v. New York, 5 Duer, 674. 
 Hunt v. New York, 52 Super. 198. 
 Lafayette v. Blood, 40 Ind. 62. 
 Fort Wayne v. Dewitt, 47 Ind. 391. 
 Joliet v. Seward, 86 111. 402. 
 Otto v. Wolf, 106 Pa. St. 608. 
 Warren v. Wright, 3 HI. Ap. 602.
 
 For whose Acts liable. 101 
 
 But with notice, liable. 
 
 Aurora v. Bitner, 100 Ind. 396. 
 Barnes v. Newton, 46 Iowa, 567. 
 Moore v. Minneapolis, 19 Minn. 300. 
 
 2. Acceptance by city. If the structure made by an- 
 other be adopted by the city, then the city becomes liable 
 exactly as though it had been built by itself. 
 
 Johnson v. Milwaukee, 46 Wis. 568. 
 Hill v. Fond du Lac, 56 Wis. 242. 
 Hiller v. Sharon Springs, 28 Hun, 344. 
 Oliver v. Kansas City, 69 Mo. 79.
 
 CHAPTER X. 
 
 PROXIMATE CAUSE. 
 
 1. Introductory. 
 
 2. Two proximate causes. 
 
 3. Application to city -negligence cases. 
 
 4. Runaway horses. 
 
 1. Introductory. It need hardly be mentioned that the 
 negligence or wrongful act, for injuries arising from 
 which an individual may recover, must have been a prox- 
 imate cause of that injury. In practice, however, some 
 difficulty may present itself in the application of this 
 rule. 
 
 2. Two proximate causes. Where two or more proxi- 
 mate causes contribute to an accident, and each is an efficient 
 cause without the operation of which the accident would not have 
 happened, it may be attributed to all or any of the causes ; 
 but it cannot be attributed to a cause unless without its operation 
 the accident would not have happened. 
 
 Ring v. Cohoes, 77 N. Y. 83. 
 
 Merritt v. Fitzgibbons, 29 Hun, 634. 
 
 (Rev. on other grounds, 102 N. Y. 362.) 
 
 Wilson v. Atlanta, 60 Ga. 473. 
 
 Williams v. D., L. & W. R. R. Co., 39 Hun, 430. 
 
 Taylor v. Yonkers, 26 W. Dig. 376. 
 
 3. Application to city negligence cases. When two causes 
 
 combine to produce an injury to a traveller upon a highway, 
 [106]
 
 Proximate Cause. 107 
 
 both of which are in their nature proximate, the one being a 
 
 culpable defect in a highway, and tlie other some occurrence for 
 which neither party is responsible, the municipality is liable, 
 provided the injury would not have been sustained but for such 
 
 defect. 
 
 Macauley v. New York, 67 N. Y. 002. 
 Kennedy v. New York, 73 N. Y. 305. 
 Chicago r. Schmidt, 29 Alb. L. J. 479. 
 Hampson v. Taylor, (R. I.) 32 Alb. L. J. 415. 
 Bassett v. St. Joseph, 53 Mo. 290. 
 Aldrich v. Gorham, 77 Me. 287. 
 Clark v. Lebanon, 03 Me. 393. 
 Galveston v. Posnainsky, 02 Tex. 118. 
 Crawfordsville v. Smith, 79 Ind. 308. 
 Lancaster v. Kissinger, (Pa.) 25 Alb. L. J. 454. 
 
 In Galveston v. Posnainsky, a child had fallen into an 
 excavation in the street, and was injured by broken glass 
 at the bottom. Held, that the excavation was the proxi- 
 mate cause. 
 
 In Chicago v. Schmidt, the plaintiff's intestate slipped 
 into a hole in a sidewalk, was thrown upon a railroad 
 track, his clothes caught upon a spike or nail in the side- 
 walk, which held him until a train ran over and killed 
 him. City held liable. 
 
 In Hampson v. Taylor, the plaintiff fell into a gully in 
 a street, upon which sleet had formed, but so recently 
 that no liability could be imputed to the city upon that 
 account alone. Held, that if the injury would not have 
 happened but for the gully the plaintiff might recover. 
 
 In Bassett v. St. Joseph, the plaintiff, in trying to avoid 
 the threatened kick of a mule, fell into a hole.
 
 108 Law. 
 
 In Hull v. Kansas City, the reins caught under a 
 horse's tail, causing the horse to back and fall into a 
 hole in the road. 
 
 Illustrative of the converse of the above rule,— that 
 the injury can be attributed to no cause not proximate, — 
 is the case of 
 
 Merrill v. Portland, 4 Cliff. C. Ct. 138. 
 
 There a signboard attached to a projecting awning 
 was struck by a wagon, and fell, hurting a passer by. 
 Hald, that the unsafe structure was not the proximate 
 cause of the injury. 
 
 Some of the cases cited above will be noticed more 
 fully in tihe next section. 
 
 4. Runaway horses While it is true that a municipal 
 corporation is not liable for damages caused by runa- 
 way horses. 
 
 Ring v. Cohoes, 77 N. Y. 83. 
 Moss v. Burlington, 60 Iowa, 438. 
 
 and in some States even by statute ; see 
 
 Perkins v. Fayette, 68 Maine, 152. 
 Titus v. North bridge, 97 Mass. 258. 
 Houfe v. Fulton, 29 Wis. 296. 
 
 and the commissioners of highways in towns are not 
 bound to make barriers strong enough to stop runaway 
 horses, 
 
 Lane v. Wheeler, 35 Hun, 606.
 
 Proximate Cause. 109 
 
 (though a municipality should so guard by barriers, a 
 dangerous place in a highway, that even skittish horses 
 may be driven there, 
 
 Pittstown v. Hart, 89 Pa. St. 389.) 
 
 still it does not follow that there can be a recovery against 
 a city in no case where a horse becomes frightened and 
 runs away. On the contrary, whenever the injury would 
 not have happened but for the defective condition of the 
 street, there may be such recovery. 
 
 In Kennedy v. New York, 73 N. Y. 365, a horse sud- 
 denly became unmanageable and backed off a dock, with 
 "tvhich it was the duty of the city to provide a string- 
 piece, but that duty had been neglected. Held, error to 
 dismiss the complaint ; that the absence of the string- 
 piece was the proximate cause. 
 
 Macauley v. New York, 67 N. Y. 602, was also a dock 
 case ; and, as in the Kennedy case, a horse was lost by 
 bacoming frightened and backing off. In this case, the 
 dock was itself defective, there being a hole in it through 
 which the horse saw the water below, at which it became 
 frightened, backed against the string-piece, which was 
 also out of repair and decayed, and which gave way. 
 Held, that these defects were the proximate cause. 
 
 In Clark v. Lebanon, 63 Maine, 393, a well-broken horse, 
 frightened at the carriage striking logs in the highway, 
 ran away, and, at a distance of one hundred and twenty- 
 five feet, threw out the driver, who was injured. Held, 
 that the logs were the proximate cause.
 
 110 Law. 
 
 In Aldrich v. Gorham, 77 Maine, 287, a well-broken 
 horse shied and jumped upon a part of a bridge not usu- 
 ally travelled, and defective. Shying held not to be the 
 proximate cause. 
 
 In Crawfordsville v. Smith, 79 Ind. 308, held that a 
 plaintiff, using due care, might recover when his horse 
 became frightened and ran into an excavation in a street.
 
 CHAPTER XI. 
 
 DEGREE OF CARE. 
 
 1. Bound to reasonable care. 
 
 2. Not insurer. 
 
 3. Public works. 
 
 4. Individuals. 
 
 5. Active vigilance. 
 
 6. Care proportioned to danger. 
 
 1. Reasonable care. It is the duty of a municipal corpora- 
 tion to keep its streets in a reasonably safe condition for public 
 use ; and whether it does so or not is a question for the jury. 
 
 Hutson v. New York, 9 N. Y, 163. 
 Todd v. Troy, 61 N. Y. 506. 
 Clemence v. Auburn, 66 N. Y. 334. 
 Evans v. Utica, 69 N. Y. 166. 
 Niven v. Rochester, 76 N. Y. 619. 
 Weed v. Ballston, Id. 329. 
 Saulsbary v. Ithaca, 94 N. Y. 27. 
 Dewire v. Bailey, 131 Mass. 169. 
 
 2. Not insurer. A municipal corporation does not insure 
 the absolutely safe condition of its streets. It is bound only to 
 reasonable care and diligence for ordinary and reasonable use. 
 
 Ring t>. Cohoes, 77 N. Y. 83. 
 Stillwell v. New York, 49 Super. 360. 
 Gorham v. Cooperstown, 59 N. Y. 660. 
 
 [HI]
 
 112 Law. 
 
 Battersby v. New York, 7 Daly, 16. 
 
 Muller v. Newburgh, 19 W. Dig. 550. 32 Hun, 24. 
 
 Wilson v. Granby, 47 Conn. 59. 
 
 Warren v. Wright, 3 111. Ap. 602. 
 
 Gibson v. Johnson, 4 HI. Ap. 288. 
 
 Owen v. Chicago, 10 HI. Ap. 465. 
 
 Kockford v. Hildebrand, 61 111. 155. 
 
 Chicago v. McGiven, 78 HI. 347. 
 
 Kenyon v . Indianapalis, 1 Wilson (Ind.) 129. 
 
 In Kenyon v. Indianapolis, it is said that a city is 
 liable only to remedy defects that may be detected and 
 remedied by the use of ordinary care and diligence. 
 
 And in Stillwell v. New York, where the injury was 
 caused by falling on a slippery vault cover, the court 
 say : " The duty was to use ordinary care to furnish a 
 reasonably safe place to step upon. There was no proof 
 that in the performance of this duty the city could resort 
 to any test but the appearance presented by the exterior 
 of the cover." 
 
 In Chicago v. McGiven, it was held that a municipal 
 corporation is not bound to furnish immunity, nor to use 
 utmost care. That the street must be reasonably safe 
 for persons using ordinary care and discretion. 
 
 In Muller v. Newburgh, an icy sidewalk case, the court 
 say : " It is not practicable for municipal corporations to 
 establish an incessant inspection of their streets ; and 
 without that it is impossible to guard against the condi- 
 tions arising from natural causes. In our climate the 
 streets and sidewalks are icy and slippery in winter, and 
 their condition is produced by natural causes and does 
 not depend on any care or skill in their construction or 
 
 reparation." 
 
 See, also, Taylor v. Yonkers, 26 W. Dig. 376.
 
 Degree of Care. 113 
 
 In Battersby v. New York : " To hold that the authori- 
 ties must, under all circumstances and at all times, keep 
 the streets clear of snow, ice or mud, would be unreason- 
 able." 
 
 In Gorham v. Cooperstown it is said : " Municipal 
 corporations are not guarantors for the absolute safety of 
 all persons from injuries by reason of defects in or 
 obstructions of the streets or highways of the municipal- 
 ity. They are only liable when the defects or obstruc- 
 tions are the results of their acts, or of some neglect or 
 omission of duty by them or their servants or agents, 
 and individuals in the use of streets receive injuries 
 therefrom without fault on their part. Some overt act of 
 the municipality or its officers, resulting in injury to third 
 persons, or some neglect or omission of duty in repairing 
 defects or removing obstructions, must be established, in 
 order to charge the municipality with the consequences 
 of any defects in or obstruction of thoroughfares within 
 the corporation." 
 
 3. In construction of public works. The rule is similar, 
 and has thus been stated : 
 
 A municipal corporation, in the construction of it* sewers, 
 drains, dr., is bound to exercise that can' <m<l i<rn<l< nee which 
 a discreet and cautious individual would use if the loss or risk- 
 were to be his oicn. 
 
 Rochester White Lead Co. v. Rochester, 3 N.Y. 463. 
 New York v. Bailey, 2 Denio, 433. 
 
 4. Individuals. Exactly the scmu rides apply, in this 
 
 8
 
 114 Law. 
 
 respect, to an individual or private corporation laicfully ob- 
 structing a street, or charged with a duty in respect to it. 
 
 McMahon v. Second Ave. E. K. Co., 75 N. Y. 231. 
 
 Nolan v. King, 97 N. Y. 565. 
 
 Welsh v. Wilson, 101 N. Y. 254. 
 
 Lanark Bank v. Eitemiller, 14 HI. Ap. 22. 
 
 In Nolan v. King, a licensee who had removed the 
 sidewalk, in order to construct a vault, built a bridge 
 over the excavation, which bridge was necessarily higher 
 than the street. It was held error on the part of the trial 
 court to charge that it was the defendant's duty " to have 
 the bridge constructed in such a manner that plaintiff 
 would not be subjected to any more personal risk than if 
 the sidewalk had been there instead of the bridge." 
 
 5. Active vigilance. Where a municipal corporation is 
 charged by its charter ivith the duty of keeping its streets in 
 repair and in suitable condition for public travel, the agents of 
 the corporation charged with that duty are bound to exercise 
 an active vigilance in the performance thereof 
 
 Todd v. Troy, 61 N. Y. 506. 
 Atlanta v. Perdue, 53 Ga. 607. 
 Eosenberg v. Des Moines, 41 Iowa, 415. 
 Chicago v. Hoy, 75 111. 530. 
 Pomfrey v. Saratoga Spr., 104 N. Y. 459. 
 
 6. Care proportioned to danger. The degree of care and 
 foresight which it is necessary to use, must always be in 
 proportion to the nature and magnitude of the injury that 
 will be likely to result from the occurrence that is to be 
 anticipated and provided against. 
 
 New York v. Bailey, 2 Denio, 433.
 
 Degree of Care. 115 
 
 In accordance with this principle, it has been often 
 
 held that the more populous the thoroughfare the 
 
 greater the degree of vigilance necessary on the part of 
 the corporation. 
 
 Smid v. New York, 49 Super. 126. 
 
 For this reason only the care required in a village 
 may not be equal to that in a city. There is no differ- 
 ence in principle. 
 
 Pomfrey v. Saratoga Spr., 5 N. T. St. K. 802.
 
 CHAPTER XII. 
 
 NOTICE. 
 
 1. Fact of obstruction, not enough. 
 
 2. Obstruction caused by city or agents. 
 
 3. License alone not notice. 
 
 4. Need of notice, generally. 
 
 5. Ignorance itself negligence. 
 
 6. Actual notice ; to whom ? 
 
 7. Constructive notice sufficient. 
 
 8. From what inferred. 
 
 9. Length of time. 
 
 10. Latent defects. 
 
 11. Duty of city. 
 
 12. Statute fixing length of notice constitutional. 
 
 13. Notice of particular defect. 
 
 14. No presumption of notice from ownership. 
 
 1. Fact of obstruction not enough. The mere fact that a 
 street is obstructed or unsafe is not alone sufficient to charge a 
 municipal corporation with negligence. 
 
 Griffin v. New York, 9 N. Y. 456. 
 McGinity v. New York, 5 Duer, 674. 
 Gorham v. Cooperstown, 59 N. Y. 660. 
 Todd v. Troy, 61 N. Y. 506. 
 Evans v. Utica, 69 N. Y. 166. 
 Stanton v. Springfield, 12 Allen, 566. 
 Cook v. Milwaukee, 24 Wis. 270. 
 
 Nor that an accident happened there. 
 
 Baltimore El. Co. v. Neal, (Md.) 5 Atl. R. 338. 
 [116]
 
 Notice. 117 
 
 This princirjle is either expressed or implied in most 
 of the cases cited in this chapter. 
 
 Some of the cases above cited and many others arose 
 from injuries caused by falls upon icy sidewalks. 
 
 Thus, in Todd v. Troy, it was held that the mere fact 
 of ice upon a sidewalk upon which the plaintiff slipped 
 and fell, did not establish the liability of the city. 
 
 2. Obstructions caused by city or agents. Where, hoivever, 
 the obstruction is caused by the city itself, the above rule does 
 not apply. In such cases no notice need be proven, the pre- 
 sumption being tJuit every one has knowledge of his own acts. 
 
 Brusso v. Bufialo, 90 N. Y. 679. 
 Platz v. Cohoes, 89 N. Y. 219. 
 Groves v. Rochester, 39 Hun, 5. 
 Sevestre v. New York, 47 Super. 341. 
 Holmes v. Paris, 75 Maine, 559. 
 Brunswick r. Braxton, 70 Ga. 193. 
 Alexander r. Mt. Sterling, 71 111. 366. 
 
 And the fact that the work was done through a con- 
 tractor does not vary the rule. 
 
 Brusso v. Buffalo, supra. 
 
 In Brunswick v. Braxton, the obstruction was made 
 by an "agent"; in Holmes v. Paris, by a "servant"; in 
 Groves v. Kochester, by an " executive board. " 
 
 The above rule applies where the work was done by 
 private persons, under the supervision of the city author- 
 ities. 
 
 Wendell v. Troy, 4 Abb. Dec. 563.
 
 118 Law. 
 
 But some question has arisen as to just what consti- 
 tutes supervision. 
 
 3. License not notice. The fact that an obstruction is made 
 
 in the course of loork done in pursuance of a resolution or 
 
 ordinance of a municipal corporation, or by its licensee, does 
 
 not necessarily make it the act of the city, so as to make notice 
 
 unnecessary. 
 
 Masterton v. Mount Vernon, 58 N. Y. 391. 
 Sweet v. Gloversville, 12 Hun, 302. 
 Dorlon v. Brooklyn, 46 Barb. 604. 
 McDermott v. Kingston, 19 Hun. 198. 
 Cohen v. New York, 43 Hun, 345. 
 
 In Sweet v. Gloversville, the excavation was made by 
 a contractor with a person who by resolution of the 
 trustees of the village had been directed to lower his 
 sidewalk. 
 
 In Dorlon v. Brooklyn, the city had granted a license 
 to a plumber employed by private persons to connect a 
 house with a city sewer. The injury was caused by the 
 plumber's negligence. 
 
 In McDermott v. Kingston, the excavation was made 
 by a gas company, acting under a license granted by 
 ordinance. 
 
 In all these cases it was held that the city could not 
 be charged without notice shown. 
 
 4. Need of notice, generally. This brings us to the 
 general rule upon the subject of notice : 
 
 A municipal corporation is not liable for injuries caused to 
 individuals by obstructions on the highway, not placed there by
 
 Notice. 119 
 
 its own officiate or by authority of tJie city government, until 
 after actual notice of their existence, or until, l»j reason of the 
 lapse of time, it should have had knowledge, and therefore actual 
 notice may be presumed. 
 
 Hume v. New York, 47 N. Y. 639. 
 Griffin v. New York, 9 N. Y. 456. 
 McGinity v. New York, 5 Duer, 674. 
 Hart v. Brooklyn, 36 Barb. 226. 
 Dorlon o. Brooklyn, 46 Barb. 604. 
 Masterson v. Mt. Vernon, 58 N. Y. 391. 
 Smith v. New York. 66 N. Y. 295. 
 Weed v. Ballston, 76 N. Y. 329. 
 McKenna r. New York, 47 Super. 541. 
 Hunt v. New York, 52 Id. 198. 
 Rehberg v. New York, 91 N. Y. 137. 
 Ehrgott r. Now York, 96 N. Y. 264. 
 Herrington v. Phajnix, 41 Hun, 270. 
 Chicago r. McCarthy, 75 HI. 602. 
 Schweickhardt r. St. Louis, 2 Mo. Ap. 571. 
 Mack v. Salem, 6 Oregon. 275. 
 
 That the notice may be either actual or constructive, 
 and the distinction between these two terms, cannot be 
 better stated than in the above rule. 
 
 5. Ignorance itself negligence. The rule thai a municipal 
 
 corporation must have notice, has no application irht ,■> its 
 
 ignorance, of the defect is the result of a '■/ear owl unmistakable 
 
 omission. 
 
 Boucher r. New Haven, 40 Conn. 456. 
 
 6. Actual notice ; to whom? As a city can act ouly 
 through its agents and officers, it follows that notice of 
 the condition of its streets can be given only to them.
 
 120 Law. 
 
 A question then arises as to who are to be regarded as 
 agents or officers, by whose knowledge of an obstruction 
 a municipal corporation will be bound. 
 
 In the following cases, notice to the officers named 
 was held to bind the corporation. 
 
 Mayor or marshal. 
 
 Salina v. Trosper, 27 Kans. 544. 
 
 Councilman. 
 
 Logansport v. Justice, 74 Ind. 378. 
 
 Superintendent of streets. 
 
 Deyoe v. Saratoga, 3 T. & C. 504. 
 
 Street commissioner. 
 
 Policeman. 
 
 Childs v. West Troy, 23 Hun, 68. 
 Welch v. Portland, (Me.) 1 East. E. 586. 
 
 Rehberg v. New York, 91 N. Y. 137. 
 Twogood v. New York, 102 N. Y. 216. 
 
 In the last case, evidence was given that a patrolman 
 whose duty it was to report violations of ordinances to 
 his superior officer reported snow and ice not removed 
 on the spot where the plaintiff fell, for seven successive 
 days before the injury. The trial court held that these 
 reports did not constitute notice to the city. The gen- 
 eral term affirmed, but the court of appeals reversed the 
 judgment. 
 
 In the following cases it was held that the city was 
 not chargeable with notice :
 
 Notice. 121 
 
 One alderman. 
 
 Peach v. Utica, 10 Hun, 477. 
 McDermott v. Kingston, 19 Hun, 198. 
 
 In the former case the court say : "I am not prepared 
 to say that notice to the common council of a defect in a 
 street or walk may not be proved by showing that it was 
 known to a considerable number of aldermen." 
 
 In both cases it was held that evidence of notice to 
 one alderman was admissible as a link in the chain of 
 proof, and should not be neglected as wholly incompe- 
 tent. 
 
 In Huggins v. Salamanca, 25 W. Dig. 401, where 
 several of the trustees knew of the excavation and gave 
 directions concerning it, it was held proper for the jury 
 to determine the question of notice. 
 
 Tiro trustees. 
 
 Bush v. Geneva, 3 T. & C. 409. 
 
 Lamjjlighter, where the charter did not require lamps. 
 Monies v. Lynn, 119 Mass. 273. 
 
 Janitor, appointed by school committee. 
 Foster v. Boston, 127 Mass. 290. 
 
 7. Constructive notice sufficient. That it is not necessary 
 in all cases to show actual notice to a city or its agents 
 of the defective condition of its streets, has already been 
 stated, and is too well established for comment to be 
 necessary. Among the many cases holding that construc- 
 tive notice is enough are the following :
 
 122 Law. 
 
 Walker v. Lockhart, 43 How. Pr. 366. 
 Weed v. Ballston, 76 N. Y. 329. 
 Requa v. Rochester, 45 N. Y. 129. 
 Diveny v. Elmira, 51 N. Y. 506. 
 Hume v. New York, 47 N. Y. 639. 
 Pettengill v. Yonkers, 23 W. Dig. 333. 
 Porter Co. Comrs. v. Dombke, 94 Ind. 72. 
 Dotton v. Albion Com. Council, 50 Mich. 129. 
 Chicago v. Dalle, 115 HI. 386. 
 Goodfellow v. New York, 100 N. Y. 15. 
 
 8. Constructive notice, from what inferred. The elements 
 of constructive notice to a municipal corporation may be 
 discovered in the following decisions. 
 
 In Indianapolis v. Murphy, 91 Ind. 382, it is said that 
 such knowledge is inferable from length of time, con- 
 sidered with reference to the facts and circumstances of 
 the particular case. 
 
 In Shook v. Cohoes, 23 W. Dig. 4, that besides time, 
 the elements are position, character, and cause of defect. 
 
 In Kequa v. Rochester, 45 N. Y. 129, that sufficient 
 time must have elapsed to render the defect notorious. 
 
 In Chicago v. Fowler, 60 111. 322, that where the jury 
 believe the defect or obstruction has been so long and 
 so notorious that the city should have known its exist- 
 ence and provided protection, they may find the city 
 liable. 
 
 In Dotton v. Albion, 50 Mich. 129, that notice may be 
 presumed from the existence of facts with which ignor- 
 ance would be incompatible unless failure to exercise 
 reasonable care be assumed.
 
 Notice. 123 
 
 Iu Todd v. Troy, 61 N. T. 506, the court say: "By 
 constructive notice is meant such notice as the law 
 imputes from the circumstances of the case. It is the 
 duty of the municipal authorities to exercise an active 
 vigilance over the streets ; to see that they are kept in a 
 reasonably 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 defect has become known and notorious to those 
 travelling the street, and there has been full opportunity 
 for the municipality, through its agents charged with 
 that duty, to learn of its existence and repair it, the law 
 imputes to it notice and charges it with negligence," and 
 cite the following cases : 
 
 Hart r. Brooklyn, 36 Barb. 226. 
 Clark v. Lockport, 49 Barb. 580. 
 Conrad v. Ithaca, 16 N. Y. 158. 
 Requa v. Rochester, suprn. 
 Hyatt v. Rondout, 44 Barb. 385. 
 
 In Albrittin v. Huntsville, 60 Ala. 486, it was held 
 that the fact that a defect in a sidewalk had existed long 
 enough to be within the observation of people generally, 
 raises the presumption that the authorities knew it. 
 
 In Hearn v. Chicago, 20 Bradwell (111.) 251, it is 
 held that " it is not necessary, in order to charge the 
 city with implied notice of a defect in a sidewalk, that 
 the circumstances should be such as to charge the parti- 
 cular person or persons having special supervision of the 
 sidewalks with such notice. It is enough if the circum- 
 stances raise an implication of notice to any officer or 
 agent of the city, whose duty it is to communicate to the 
 city or its proper executive officers the existence of 
 such defect."
 
 124 Law. 
 
 9. Length of time to constitute constructive notice. Question 
 for whom ? (a) General rule. Upon this point there are 
 two lines of authorities. The general rule is that it is 
 purely a question of fact for the jury. 
 
 Chicago v. McCulloch, 10 111. Ap. 459. 
 
 Sheel v. Appleton, 49 Wis. 125. 
 
 Kehberg v. New York, 91 N. Y. 137. 
 
 Kunz v. Troy, 35 Alb. L. J. 232 ; 5 N. Y. St. K. 
 
 642. 
 Heed v. New York, 31 Hun, 311. 
 Kinney v. Troy, 38 Hun, 285. 
 
 In Chicago v. McCulloch, held that no length of 
 notice can be fixed as matter of law, after which a city 
 will be bound for failure to remove an obstacle. 
 
 In Sheel v. Appleton, that it is purely a question for 
 the jury ; that one day may be enough. 
 
 In Reed v. New York, the court say that " reasonable 
 time " is for the jury to determine, and that a refusal to 
 so charge was error. 
 
 (b) Obstruction by elements. In several cases where the 
 injury has been caused by falling upon icy sidewalks, a 
 non-suit has been held proper upon the ground of insuffi- 
 cient notice to charge the corporation. 
 
 Such cases are : 
 
 Muller v. Newburgh, 32 Hun, 24. 
 Garrett v. Buffalo, 22 W. Dig. 262. 
 Smith v. Brooklyn, 36 Hun, 224. 
 Heintze v. New York, 50 Super. 295. 
 Evers v. Hudson Biver Br. Co. , 18 Hun, 144. 
 Blakely v. Troy, 18 Hun, 167.
 
 Notice. 125 
 
 The grounds on which these cases are decided is 
 summarized in two Massachusetts cases, as follows : 
 
 If the obstruction be produced by the elements, 
 liability will not attach to the corporation unless neglect 
 on his part is shown, after knowledge or notice of the 
 obstruction and a reasonable time for its removal. 
 
 Billings v. Worcester, 102 Mass. 329. 
 Street v. Holyoke, 105 Mass. 82. 
 
 In Muller v. Newburgh, the plaintiff fell Sunday even- 
 ing. Snow had fallen the Thursday before, after which 
 it rained and the rain had frozen hard. It was " a case 
 where the snow first came down on the sidewalk and was 
 softened by the rain, and then the whole mass was con- 
 gealed and hardened as it lay, and while a light snow 
 was yet falling on this surface of ice, the plaintiff slipped 
 and received this injury." The court say; 
 
 " It is not practicable for the municipal corporations 
 of this State to establish an incessant inspection of their 
 streets, and without that it is impossible to guard against 
 the conditions arising from natural causes. In our 
 latitude climatic changes are frequent and sudden. Ice 
 and snow may dissolve into water during the day, even 
 in winter, and spread over the sidewalk and harden to 
 ice in the night, or the pavements may become slippery 
 from moisture or rain, and both these causes may pro- 
 duce accidents and injuries which no extent of vigilance 
 and care would prevent, and which the corporation 
 cannot be called on to redress." 
 
 In Smith v. Brooklyn, snow fell November 28th and
 
 126 Law. 
 
 29th, which subsequently melted and ice formed there- 
 from. The plaintiff fell December 4th. The court say : 
 
 " In our climate no reasonable amount of care can 
 prevent the accumulation of ice and snow, and all that is 
 required from municipal corporations is reasonable care 
 and diligence. And what is reasonable must be deter- 
 mined in view of all the surrounding conditions. Our 
 seasons are fluctuating, the inspection of streets is not 
 incessant, the officers and means provided for that pur- 
 pose are limited, and after the exertion of all reasonable 
 diligence defects and obstructions will exist and injuries 
 will result." 
 
 In Evers v. Hudson River Br. Co., the plaintiff fell 
 between 8 and 9 o'clock in the morning upon ice which 
 had formed by the freezing of rain which had fallen 
 during the night. 
 
 In Blakely v. Troy, ice formed during the night, and 
 plaintiff fell at one o'clock the next afternoon. 
 
 In that case it appeared, however, that there was ice 
 there before, and upon appeal it was held that in such 
 case the city might still be liable. 
 
 In Kenney v. Cohoes, 16 W. Dig. 206, on the other 
 hand, it appeared that rain fell during the night and 
 froze before morning at the place where the plaintiff fell. 
 There was, however, a prior accumulation of ice. It was 
 held not error to refuse to charge that if the walk had 
 not been slippery before the new ice formed, the plaintiff 
 could not recover, since it might be inferred that the rain 
 washed dirt from the old ice, thus rendering it slippery.
 
 Notice. 127 
 
 In Garrett v. Buffalo, ice formed on a slanting drive- 
 way, without negligence of the city. The walk was 
 cleaned the day before, and rain fell and froze in the 
 night. 
 
 Of this class of cases the court say, in Kinney v. Troy, 
 38 Hun, 285 : 
 
 "In Muller v. Newburgh, 32 Hun, 24, a majority of 
 the court held that when ice formed on Thursday and the 
 plaintiff fell and was injured on Sunday, there was not 
 evidence for the jury on the question of presumptive 
 notice to the defendant. I think great difficulty will be 
 found, if the courts attempt to declare, as law, what time 
 the obstruction must have existed in order to permit the 
 question of notice to go to the jury." 
 
 (c) For the purpose of avoiding the difficulty of estab- 
 lishing notice, it is often desirable to establish something 
 more than the mere continued existence of ice. 
 
 In some cases it has been made to appear that the 
 accident occurred by reason of ice forming upon improp- 
 erly constructed or uneven sidewalks. 
 
 Urquhart v. Ogdensburgh, 97 N. Y. 238. 
 
 Atchison r. King, i) Kan. f>" >'■'<. 
 
 Mauch Chunk v. Kline, 100 Pa. St. 119. 
 
 In others, that the water which formed the ice was 
 conducted to the street or sidewalk by artificial means — 
 as hydrants, leaders from roofs, <fec. — of the existence of
 
 128 Law. 
 
 which, and of the tendency to form ice, the city had or 
 ought to have had notice. 
 
 Mosey v. Troy, 61 Barb. 580. 
 
 (S. C. in court of appeals) Todd v. Troy, 61 N. Y. 
 
 506. 
 Dempsey v. New York, 10 Daly, 417. 
 Reich v. New York, 12 Daly, 72. 
 Darling v. New York, 18 Hun, 340. 
 Allison v. Middletown, 23 W. Dig. 149 ; 101 N. Y. 
 
 667. 
 Powers v. Chicago, 20 Bradw. (HI.) 178. 
 
 10. Latent defects. The law does not presume notice to a 
 municipal corporation of latent defects. 
 
 Scanlon v. New York, 12 Daly, 81. 
 Hunt v. New York, 52 Super. 198. 
 Hart v. Brooklyn, 36 Barb. 226. 
 Hanscom v. Boston, 33 Alb. L. J. 355. 
 Joliet v. Walker, 7 III. Ap. 267. 
 
 In Hunt v. New York, the injury was caused by an 
 explosion resulting from the ignition of gas which had 
 accumulated and filled a man-hole constructed and 
 owned by a private corporation. 
 
 In Hart v. Brooklyn, it was caused by the slipping of 
 a vault grating when the plaintiff stepped upon it. 
 
 In Joliet v. Walker the court say : "A municipal 
 corporation will not be considered to have notice of a 
 defect in. a sidewalk which was not such as to put a rea- 
 sonable, prudent man, whose business it was to look after 
 the repairs, on inquiry to examine its condition. 
 
 11. Duty of city. The above rule is, however, subject to the 
 duty of the city to use ordinary caution to anticipate the dan-
 
 Notice. 129 
 
 ger that could come into existence without manifesting itself to 
 ordinary observation. 
 
 Vosper r. New York, 49 Super. 296. 
 
 Or as otherwise stated : 
 
 " The duty of keeping a highway in order involves 
 the duty of reasonable supervision. And when exercise 
 of such supervision would have led to the discovery of a 
 defect in season to repair it, or protect the public against 
 it, there is the same liability as though there had been 
 actual knowledge." 
 
 Cusick v. Norwich, 40 Conn. 375. 
 
 Kunz v. Troy, 5 N. Y. St. R. 642. 104 N. Y. 344. 
 
 Market v . St. Louis, 56 Mo. 189. 
 
 Weed v. Ballston, 76 N. Y. 329. 
 
 In Vosper v. New York the injury was caused by the 
 falling of a tree standing on the sidewalk, which, after its 
 fall, was found to be rotten to a dangerous degree from 
 its roots up. 
 
 It was held that the duty of the city is not limited to 
 acting upon exterior signs of danger, and that it was a 
 question for the jury to determine whether or not the 
 defendants should by some means have anticipated the 
 danger, even by cutting down the tree. 
 
 The case of Gubasco v. New York, 12 Daly, 192, was 
 similar, the injury being caused by the throwing down, 
 by a passing truck, of a tree which had been dead several 
 years, and had a large hole, but the evidence of its rot- 
 tenness was conflicting. 
 
 In Indianapolis v. Scott, 72 Ind. 196, it was held that 
 9
 
 130 Law. 
 
 a city is chargeable with knowledge of the tendency of 
 timber to rot by lapse of time and exposure to weather. 
 
 12. Statute fixing notice constitutional. The liability of 
 the city of Schenectady for injuries caused by the danger- 
 ous condition of its streets, is by statute conditioned 
 upon twenty-four hours' notice, previous to the injury, to 
 the common council or superintendent of its streets. 
 
 Held, constitutional in 
 
 Van Vranken v. Schenectady, 31 Hun, 516. 
 
 12. Particular defect. In Weisenberg v. Appleton, 26 
 Wis. 56, held that a city may be liable for a sidewalk in 
 an unsound and dangerous condition, if the authorities 
 did not know the particular defect existed. 
 
 13. No presumption from ownership. In Heintze v. "New 
 York, 50 Super. 295, held that the fact of ownership by 
 the city of premises to which a dangerous sidewalk is 
 adjacent, raises no presumption of notice. 
 
 Here may be noticed, Lowhouse v. Buffalo, 22 W. Dig, 
 49, that ownership by the State of arsenal property 
 within a city does not excuse the city from the duty of 
 keeping the street safe for travellers.
 
 CHAPTER XIII. 
 
 CONTRIBUTORY NEGLIGENCE. 
 
 1. General rule, 
 
 2. Proximate cause. 
 
 3. Degree of care. 
 
 4. Cases : Recovery barred. 
 
 5. Presumption of safety. 
 
 6. Right to whole street. 
 
 7. Knowledge of defect. 
 
 8. Latent defects. 
 
 9. Defective vision. 
 
 10. Intoxication. 
 
 11. Infant. 
 
 12. Imputed negligence. 
 
 13. Imminent danger. 
 
 14. Comparative negligence. 
 
 15. Acts held to not bar recovery. 
 
 16. Subsequent carelessness. 
 
 1. General rule. The principle of contributory negli- 
 gence is well stated in the following : 
 
 An action for negligence cannot be sustained if the wrong- 
 ful act or negligence of the plaintiff co-operated with the mis- 
 conduct of the defendant, to produce the injury complained of. 
 
 Hunger v. Tonawanda R. R. Co., 4 N. Y. 349. 
 Monongahela v. Fischer, (Penn.) 3 East. R. 695. 
 
 It is useless to multiply authorities upon this well- 
 known principle. Their number is legion. 
 
 [131]
 
 132 Law. 
 
 2. Proximate cause. Though the plaintiff were negligent, 
 
 yet if his negligence did not contribute to the injury ; or, in 
 
 other words, if, notwithstanding his negligence, the injury would 
 
 still have happened, the contributory negligence will not bar 
 
 recovery. 
 
 Haley v. Earle, 30 N. Y. 208. 
 
 Van Ostran v. N. Y. C. &c. E. B. Co., 35 Hun, 590. 
 Kline v. C. P. E. E. Co., 37 Cal. 400. 
 Needham v. San Francisco E. E. Co., Id. 400. 
 Flynn v. San Francisco, &o. E. E. Co., 40 Cal. 14. 
 Eome v. Dodd, 58 Ga. 238. 
 Centerville v. Woods, 57 Ind. 192. 
 Pacific E. E. Co. v. Houts, 12 Kan. 328. 
 Mississippi Cent. E. E. Co. v. Mason, 51 Miss. 234. 
 Walsh v. Mississippi, &c. Co., 52 Mo. 434. 
 Frick v. St. Louis, &c. Ey. Co., 5 Mo. Ap. 435. 
 New Jersey Exp. Co. v. Nichols, 33 N. J. L. 434. 
 Hurst v. Burnside, (Or.) 8 Pac. E. 888. 
 Gould v. McKenna, 86 Pa. St. 297. 
 
 3. Degree of care. There is no contributory negligence 
 when the injured party acts with ordinary prudence, on that 
 apprehension of danger which he is bound to have under the 
 circumstances, and tlwse appearances of danger which the situ- 
 ation manifests. 
 
 Nowell v. New York, 52 Super. 382. 
 
 That ordinary care only is required to avert the 
 charge of contributory negligence, is held also in 
 
 Center v. Finney, 17 Barb. 94 ; Seld. N. 80. 
 Eakin v. Brown, 1 E. D. Smith, 36. 
 Lancaster v. Kissinger, (Pa. ) 25 Alb. L. J. 454. 
 Dupree v. Cent. Pac. Ey. Co., 7 Pac. E. 953. 
 Wooley v. Grand St., &c. E. E. Co., 83 N. Y. 121. 
 
 In Center v. Finney the court say :
 
 Contributory Negligence. 133 
 
 " If ordinary diligence by the plaintiff will not pre- 
 vent the injury, he is not considered in any degree the 
 author of the wrong." 
 
 In Wooley v. Grand St., <fcc. Co., the injury was caused 
 by a sleigh being overturned by a switch laid on the 
 street by a licensed company. The court say : 
 
 " It is incumbent upon the owner of the special fran- 
 chise to use a switch put down in a manner that is con- 
 sonant with the general rightful use of the same public 
 way. That general rightful use is such use as men of 
 ordinary care and prudence, having knowledge of the 
 location of the switch, will exercise when passing over 
 that part of the public way, at which the switch is laid 
 down. The citizen is bound to expect to meet such fix- 
 tures in the use of his common right of travel over the 
 street, and is bound to use that care in approaching and 
 passing by or over it, on foot or in vehicles, that men of 
 ordinary care and prudence would put forth in the same 
 locality and circumstances." 
 
 In Lancaster v. Kissinger the plaintiff, seated on one 
 of a load of loose boxes in a wagon, was thrown off in 
 crossing a gutter. The court say : 
 
 " What was the proper measure of care under such 
 circumstances? The same care that a man with a fixed 
 load and a firm seat would be expected to take ? Cer- 
 tainly not. Negligence is the absence of care according 
 to the circumstances. If a man is driving an untamed 
 horse he naturally and properly exercises more care than 
 if he were driving one entirely gentle : so of the road, if
 
 134 Law. 
 
 it is rough and out of repair he exercises more care than 
 if well graded and macadamized." 
 
 The converse of the rule given at the head of this 
 section is thus stated : 
 
 " If 'in the use of ordinary care and prudence such as tlve 
 ordinarily prudent person would have used under the same 
 circumstances, it [the defect] ought to have been discovered, 
 t/ien the plaintiff cannot recover.'" 
 
 Minick v. Troy, 83 N. Y. 514. 
 
 In accordance with these principles it has been held 
 that a charge that the plaintiff cannot recover if guilty of 
 " any negligence whatever " is erroneous, as implying that 
 extreme care is required of the traveller. 
 
 And on the other hand, that it is not error to refuse to 
 charge that the plaintiff is bound to use extraordinary 
 care when a sidewalk is slippery ; and a charge that there 
 is demanded " reasonable care in view of this fact " was 
 held proper. 
 
 Monahan v. Cohoes, 14 W. Dig. 112. 
 
 4. Cases. Recovery barred. Illustrative of the last 
 section are the following cases, in each of which it was 
 held that the plaintiff's own negligence prevented his 
 recovery. 
 
 (a) Walking on an embankment thrown up while 
 excavation being made — street wide enough to pass. 
 
 Carolus v. New York, 6 Bosw. 15.
 
 Contributory Negligence. 135 
 
 (b) Walking on ice in daytime — plenty of space 
 either side for passing. 
 
 Quincy v. Barker, 81 111. 300. 
 
 (c) Walking hastily or negligently, or knowing of 
 defect and able to have avoided it by taking the other 
 side of the street. 
 
 Lovenguth v. Bloomington, 71 111. 238. 
 
 (d) Walking in an absent-mined, inattentive, negli- 
 gent manner, and so stumbling over an obstruction which 
 a prudent person could have avoided. 
 
 Chicago v. Bixby, 84 HI. 82. 
 Vicksburgk v. Hennessey, 54 Miss. 391. 
 
 (e) Stepping deliberately from sidewalk, with suffi- 
 cient light and good eyesight, into a pitfall beside the 
 
 walk. 
 
 Monmouth r. Sullivan, 8 HI. Ap. 50. 
 McLaury v. McGregor, 54 Iowa, 717. 
 
 (f) To descend a stair-case known to be slippery, 
 failing to use a hand-rail. 
 
 Foster v. New York Central, &c. R. R. Co., 2 How. 
 Pr. N. S. 416; 23 W. Dig. 18. 
 
 (g) Stepping into opening on sidewalk, lighted by a 
 lamp immediately over opening — sidewalk of usual width 
 and opening close to house for light and ventilation. 
 
 King v. Thompson, 87 Pa. St. 365.
 
 136 Law. 
 
 (li) Where a street opposite a building in process of 
 erection is so encroached upon by piles of rubbish that 
 only sufficient room is left for one vehicle to pass — at- 
 tempting in daylight to pass another carriage by driving 
 over the obstruction. 
 
 Griffin v. New York, 9 N. Y. 456. 
 
 (i) Stranger in city, on dark night, voluntarily left 
 his companion who was familiar with the locality and had 
 a lantern, and walked through an opening in a bridge. 
 
 Cummins v. Syracuse, 3 East. Eep. 198. 
 [Mem.] 100 N. Y. 637. 
 
 (j) Eunning to fire, fell over stepping-stone on wide 
 sidewalk, in front of lighted post-office, gas-light beside 
 stone. 
 
 Dubois v, Kingston, 102 N. Y. 219. 
 
 5. Presumption of safety. The ordinary diligence required 
 of a city in the care of its streets is by no means the measure of 
 the ordinary diligence required of a traveller upon those streets. 
 
 Wilson v. Atlanta, 63 Ga. 291. 
 
 The city is charged with a duty to keep its streets in 
 order, and, it may almost be said, is bound to act upon the 
 assumption that they are unsafe. 
 
 On the contrary : " All persons using streets and side- 
 walks have the right to assume that they are in good and 
 safe condition, and to regulate their conduct upon that 
 assumption." 
 
 Kenyon v. Indianapolis, 1 Wilson (Ind.) 139.
 
 Contributory Negligence. 137 
 
 " Any person travelling a sidewalk of a city, which is 
 in constant use by the public, lias a right, when using 
 the same with due diligence, to presume, and act upon 
 the presumption, that it is reasonably safe for ordinary 
 travel, throughout its entire width, from all dangers and 
 annoying obstructions of a permanent character." 
 
 Indianapolis v. Gaston, 58 Ind. 224. 
 
 " A person passing along a sidewalk has a right to 
 presume it to be safe, and is bound to no special care ; 
 and is not bound to watch for unlawful obstructions." 
 
 Dorland v. N. Y. C. & H. K. R. R. Co., 19 W. Dig. 76. 
 
 " One who passes along a sidewalk has a right to pre- 
 sume it to be safe. He is not called upon to anticipate 
 danger, and is not negligent for not being on his guard." 
 
 McGuire v. Spence, 91 N. Y. 303. 
 
 " A person travelling on a public street, if he exercises 
 ordinary care, has a right to be absolutely safe against all 
 accidents arising from obstructions or imperfections in 
 
 the streets." 
 
 Lincoln v. Walker, (Neb.) 30 Alb. L. J. 406. 
 Chicago v. Hickok, 17 Bradw. (111.) 142. 
 
 11 The streets and sidewalks are for the benefit of all 
 conditions of people, and all have the right, in using 
 them, to assume that they are in good condition, and to 
 regulate their conduct upon that assumption. A person 
 may walk or drive in the darkness of the night, relying 
 upon the belief that the corporation has performed its 
 duty and that the street or the walk is in a safe condition.
 
 138 Law. 
 
 He walks by a faith justified by law, and if his faith is 
 unfounded and he suffers an injury, the party in fault 
 must respond in damages." 
 
 Davenport t\ Ruckman, 37 N. T. 568. 
 
 This principle is, however, subject to the rule that : 
 " Persons walking in a city are bound to take notice of 
 the existence of such constructions as the necessities of 
 commerce and the convenient occupation of residences 
 render common." 
 
 (For instance, exterior basement stairs.) 
 
 Buesching v. St. Louis Gas Light Co., 6 Mo. Ap. 85. 
 
 It should also be observed that the ordinary care 
 required of a traveller upon the highway is not the same 
 as that of one about to cross a railroad track, " where 
 there is reason to expect danger, and where the person 
 crossing must be on the look-out." 
 
 Ckilds v. West Troy, 23 Hun, 68. 
 Gumb v. Twenty-third St. R. R. Co., 1 N. Y. St. R. 
 715. 
 
 6. Right to whole street. One not only has a perfect right 
 to ivalk across a street, and being in a public thoroughfare has a 
 right to assume that his rights ivill not be wrongfully invaded, 
 
 Moody v. Osgood, 54 N. Y. 488. 
 
 But is not obliged to go upon a cross-walk. He has a right 
 to assume the whole street to be reasonably safe. 
 
 Brusso v. Buffalo, 90 N. Y. 679. 
 Raymond v. Lowell, 6 Cush. 524.
 
 Contributory Negligence. 139 
 
 Knight v. Bath-on-the Hudson, 21 W. Dig. 301. 
 Simons v. Gaynor, 89 Ind. 165. 
 
 To walk upon the carriage-way of a bridge, though it 
 have a sidewalk, is not per se negligent. 
 
 Morrell v. Peck, 88 N. Y. 398. 
 
 7. Knowledge of defect. That the person injured kneio of 
 the defect or obstruction before the injury does not per se estab- 
 lish negligence on his part. 
 
 Diveny v. Elmira, 51 N. Y. 506. 
 
 Todd v. Troy, 61 Id. 506. 
 
 Evans v. Utica, 69 Id. 166. 
 
 Bassett v. Fish, 75 Id. 303. 
 
 Weed v. Ballston, 76 Id. 329. 
 
 Palmer v. Dearing, 93 Id. 7. 
 
 Bullock v. New York, 99 Id. 654. 
 
 Twogood v. New York, 102 Id. 216. 
 
 Driscoll r. New York, 11 Hun, 101. 
 
 Koch r. Edgewater, 14 Id. 544. 
 
 Darling v. New York, 18 Id. 340. 
 
 Harris v. Perry, 23 Id. 244 ; rev'd on other grounds, 
 
 89 N. Y. 308. 
 Thomas v. New York, 28 Id. 110. 
 Pomfrey v. Saratoga, 34 Id. 607. 
 Bateman v. Ruth, 3 Daly, 378. 
 Vandercook v. Cohoes, 12 W. Dig. 84. 
 Dunham v. Canandaigua, 13 Id. 551. 
 Gage r. Hornellsville, 24 Id. 276. 
 Phillips v. Fishkill, 26 Id. 103. 
 Montgomery v. Wright, 72 Ala. 411. 
 Bronson r. Smithbury, 37 Conn. 199. 
 Aurora v. Dale, 90 HI. 46. 
 Huntington v. Breen, 77 Ind. 29. 
 Madison Co. Comrs. r. Brown, 89 Id. 48. 
 Albion v. Herrick, 90 Id. 545. 
 Wilson r. Trafalgar, &o. Gravel Road Co. , 93 Id. 287. 
 Jeffrey v. Keokuk, &c. Ry. Co., 56 Iowa, 546. 
 Osage City v. Brown, 27 Kan. 74. 
 Maultby v. Leavenworth, 28 Id. 745.
 
 140 Law. 
 
 Emporia v. Scheindling, 33 Id. 485. 
 
 Langan v. Atchinson, (Kan.) 11 Pac. E. 38. 
 
 Prince George's Co. Comrs. v. Burgess, 61 Md. 29. 
 
 Dewire v. Bailey, 131 Mass. 169. 
 
 Gilbert v. Boston, 139 Id. 313. 
 
 Lowell v. Watertown, (Mich.) 33 Alb. L. J. 19. 
 
 Estelle v. Lake Crystal, 27 Minn. 243. 
 
 McKenzie v. Northfield, 30 Id. 456. 
 
 Hubbard v. Concord, 35 N. H. 52. 
 
 Templeton v. Montpelier, (Vt.) 30 Alb. L. J. 358. 
 
 Kavanaugh v. Janesville, 24 Wis. 618. 
 
 Kenworthy v. Ironton, 41 Wis. 647. 
 
 The rule is that he must use the ordinary care and 
 prudence which the circumstances demand. 
 
 Diveny v. Elmira, supra. 
 Palmer v. Dearing, supra. 
 Bullock v. New York, supra. 
 Koch v. Edgewater, supra. 
 Huntington v. Breen, supra. 
 Wilson v. Trafalgar, &c. Co., supra. 
 Joliet v. Conway, 17 Bradw. (111.) 577. 
 
 And recovery will not be prevented unless a person of 
 ordinary prudence would not have walked there. 
 
 McKenzie v. Northfield, supra. 
 Evans v. Utica, supra. 
 
 And it is ordinarily a question for the jury. 
 
 Bullock v. New York, supra. 
 Pomfrey v. Saratoga, sup>ra. 
 Driscoll v. New York, supra. 
 Twogood v. New York, supra. 
 Todd v. Troy, supra. 
 Brusso v. Buffalo, 90 N. Y. 679. 
 McGuire v. Spence, 99 N. Y. 654. 
 
 (a) It has been held in different cases, that a person 
 under such circumstances may be excused,
 
 Contributory Negligence. 141 
 
 If his attention was not called to the obstruction at 
 the time of the injury, 
 
 Darling r. Now York, supra. 
 Thomas v. New York, supra. 
 
 or if he believed it to be reasonably safe, and there was no 
 other walk convenient, 
 
 Montgomery v. "Wright, sup?-a. 
 Albion r. Herrick, supra. 
 
 or, though watching for the defect in order to avoid it, 
 
 was prevented from doing so by a blinding snow-storm ; 
 
 and other sidewalks leading to his home were equally 
 
 unsafe. 
 
 Aurora v. Dale, supra. 
 
 In Jeffrey v. Keokuk, <tc. Ry. Co., supra, held that a 
 person may voluntarily and without actual necessity 
 expose himself to danger and yet recover. 
 
 In Osage City v. Brown, supra, that an old man walk- 
 ing rapidly in a dark night, and being injured upon an 
 obstruction of which he knew, might recover. 
 
 So in Twogood v. New York, supra, though the walk 
 were icy and the other walk clear. 
 
 And in Driscoll v. New York, supra, though the 
 plaintiff failed to pay attention to a hole which had 
 existed for several years at a street corner near her house, 
 on account of her mind being engrossed in business. 
 
 (b) The following cases are selected in which it was 
 held that the contributory negligence of the plaintiff pre- 
 vented a recovery.
 
 142 Law. 
 
 Plaintiff voluntarily attempted to pass over a sidewalk 
 of a city, which he knew to be dangerous by reason of ice 
 upon it, which he might easily have avoided. 
 
 Schaefler v. Sandusky, 33 Ohio St. 246. 
 
 Shown to have passed over same slippery sidewalk an 
 hour before. 
 
 Macomb v. Smithers, 6 111. Ap. 470. 
 
 Attempted in the dark to pass an open cellar-way in a 
 sidewalk, knowing, but for the time forgetting its 
 existence. 
 
 Bruker v. Covington, 69 Ind. 33. 
 
 Voluntarily left safe, well-lighted sidewalk and fell 
 into a hole eight feet away. 
 
 Zettler v. Atlanta, 66 Ga. 195. 
 
 Cautioned by his wife just before stepping on the ice. 
 Durkin v. Troy, 61 Barb. 437. 
 
 Knew walk was unsafe and there was another on which 
 she might have passed safely. 
 
 Parkhill v. Brighton, 61 Iowa, 103. 
 
 Attempted in night-time to cross excavation with which 
 he was familiar, on planks, instead of going around. 
 
 Momence v. Kendall, 14 HI. Ap. 229. 
 Knowing of the existence of ice upon the sidewalk,
 
 Contributory Negligence. 143 
 
 took the risk of walking there rather than the incon- 
 venience of turning out into the street. 
 
 Erie v. Magill, 101 Pa. St. 616. 
 
 Or of going around through an alley. 
 
 Fleming v. Lockhaven, (Pa.) 31 A. L. J. 178. 
 
 (c) All the above cases should be considered in con- 
 nection with the following general rule : 
 
 Where one, knowing the defective condition of a sidewalk, 
 ventures upon it without taking the precaution necessary to pre- 
 vent afcdl, he cannot recover. 
 
 Aurora v. Brown, 11 111. Ap. 122. 
 
 Mayhew v. Burns, (Ind.) 2 No. East. K. 793. 
 
 Erie v. Magill, 101 Pa. St. 616. 
 
 Schaefler v. Sandusky, 33 Ohio St. 246. 
 
 "Wilson v. Charlestown, 8 Allen, 137. 
 
 Parkbill v. Brighton, 61 Iowa, 103. 
 
 Cook v. Johnson, 58 Mich. 437. 
 
 8. Latent defects. A traveller is by no means required to 
 avoid defects or obstructions which he cannot see. 
 
 Clark r. Lockport, 49 Barb. 580. 
 Van Alstine v. Clyde, 17 W. Dig. 505. 
 
 In the former case, an icy sidewalk was covered with 
 snow ; in the latter, the defect in a plank walk was in the 
 string-pieces and out of sight.
 
 144 Law. 
 
 9. Defective vision. For a person with defective sight to 
 walk the streets of a city is not per se negligent. 
 
 Davenport v. Ruckman, 37 N. T. 568. 
 Eequa v. Rochester, 45 N. Y. 129. 
 Peach v. Utica, 10 Hun, 477. 
 Harris v. Uebelhoer, 75 N. Y. 169. 
 
 In the first three cases, the plaintiff was partially 
 blind, and unattended ; in the last case, totally blind and 
 attended by his wife. 
 
 In Davenport v. Buckman the court say : 
 
 " One whose sight is dimmed by age, or a near-sighted 
 person whose range of vision was always imperfect, or one 
 whose sight has been injured by disease, is each entitled 
 to the same rights, and may act upon the same assump- 
 tion." 
 
 So, too, to drive a partly blind horse has been held 
 not of necessity negligence. 
 
 Wright v. Templeton, 132 Mass. 49. 
 
 10. Intoxication, (a) Intoxication is not perse contribu- 
 tory negligence. It does not preclude recovery, unless it con- 
 tributed thereto, and that is a question for the jury. 
 
 Healy v. New York, 6 T. & C. 92 ; 3 Hun, 708. 
 Ditchett v. Spuyten Duy vil, &c. R. R. Co., 5 Hun, 162. 
 (Rev'd on other grounds, 67 N. Y. 425.) 
 
 In other words, a plaintiff is not debarred from recov- 
 ery by reason of intoxication, unless he was thereby dis- 
 abled from the exercise of ordinary care. 
 
 O'Hagan v. Dillon, 42 Super. 456. 
 (Rev'd on other grounds, 76 N. Y. 170.)
 
 Contributory Negligence. 145 
 
 But if proper precaution were thereby prevented he 
 cannot recover. 
 
 Illinois Central R. R. Co. v. Cragin, 71 HI. 177. 
 Cramer v. Burlington, 42 Iowa, 315. 
 Monk v. New Utrecht, 104 N. Y. 561. 
 
 In Wood v. Andes, 11 Hun, 543, a man much intox- 
 icated, and after having been warned against it, attempted 
 to cross an unsafe bridge, and fell and was killed ; no 
 recovery. 
 
 (b) On the otlter hand, tlie fact of intoxication cannot avail 
 to excuse contributory negligence. 
 
 Illinois Cent. R. R. Co. v. Hutchinson, 47 HI. 408. 
 
 11 Infant. In case a child of immature years sustains 
 injury by the negligence of another, and an action is 
 brought, either in its own behalf or in behalf of its parents 
 or other persons entitled, the question of contributory 
 negligence is more complicated than in the case of an 
 adult. 
 
 (a) The contributory negligence, if any, may be thai of tin 
 infant itself or its parent or the 'person entrusted with its care. 
 
 Whether or not negligence may be imputed to the 
 infant itself depends upon whether or not it is of such 
 tender age as to be not responsible for its acts. 
 
 Mangani v. Brooklyn R. R. Co., 38 N. Y. 466. 
 
 If the child is sui juris, and negligent, or if non sui juris 
 
 and contributed by its acts to the injury, and the acts of 
 10
 
 146 Law. 
 
 the parent also contributed to the injury, then there can 
 be no recovery. 
 
 (b) Unless the child did, or omitted to do, something icliich 
 
 ivould have been negligence in an adult, the negligence of the 
 
 parents is no defense. 
 
 Gowan v. Brooklyn Cross-town R. R. Co., 2 Mo. 
 
 Bui. 12. 
 McGarry v. Loomis, 63 N. Y. 104. 
 Ihl v. Forty-second St. R. R. Co., 47 N. Y. 317. 
 Birkett v. Knickerbocker Ice Co., 41 Hun, 404. 
 Cumming v. Brooklyn City R. R. Co., 104 N. Y. 659. 
 
 (c) Just here may be conveniently noticed a line of 
 cases in New York in which the whole question of con- 
 tributory negligence of infants is summarily disposed of 
 as follows : 
 
 " I know of but one rule on the subject, as the law is 
 held with us, and I think it applies to all persons without 
 exception and makes no discrimination on account of age. 
 It is that degree of care which a person of ordinary pru- 
 dence would exercise in the situation supposed." 
 
 Honegsberger v. Second Ave. R. R. Co., 2 Abb. 
 
 Dec. 378. 
 Burke v. Broadway & Seventh Ave. R. R. Co., 
 
 34 How. Pr. 239. 
 Solomon v. Central Park, &c. R. R. Co., 1 Sweeny, 
 
 298. 
 
 This rule is probably not to be understood as assum- 
 ing that all children, of no matter how tender age, can be 
 personally negligent ; it proceeds rather upon the theory 
 that there can be no case in which some one may not be 
 charged with contributory negligence ; that whenever the 
 child does what would be negligent in an adult, and is not 
 of sufficient age to be responsible for his actions, it fol-
 
 Contributory Negligence. 147 
 
 lows as matter of law, that the parents were negligent in 
 permitting him to get into danger. 
 
 The onus is then cast on the parents in every case of 
 judging correctly of the responsibility of the child ; and 
 this directly afiects the child himself, since he is bound 
 by the contributory negligence of the parents. 
 
 To state the rule in other words : All persons, infants 
 included, are bound to one rigid rule of ordinary pru- 
 dence. If the person transgressing this rule be an adult, 
 or any person sui juris, he is directly bound by his con- 
 tributory negligence and his recovery barred. If non sui 
 juris, the direct responsibility is shifted upon the parent 
 or protector ; the acts of the infant become proof positive 
 of the negligence of the parent, and the infant is bound by 
 the negligence of the parent and his recovery still bar- 
 red. This seems a harsh rule. It is said in 16 Central 
 L. J. p. 429 ; also in 6 Abb. N. C. p. 101, to be no longer 
 the rule in this State ; and the present current of decision 
 does not appear to sustain it. 
 
 (d) The more approved rule seems to be that stated in 
 Eyder v. New York, 50 Super. 220, where a child, while 
 playing on the sidewalk, fell into an excavation. The 
 court say : 
 
 " Whether sui juris or not, if she by want of such care 
 and attention, on her own part, as could have been fairly 
 expected and due from one of her years and knowledge of 
 the nature of the danger to be guarded against, had caused 
 this injury, such negligence on her part would go far to 
 defeat this action. If sui juris, it would be negligence 
 imputable to herself (Wendell v. R. R., 91 N. Y. 426 ; Thur-
 
 148 Law. 
 
 ber v. R. R., 60 Id. 333-4). If sui juris, and her parents 
 had been negligent in leaving her free to run at large on 
 the sidewalk, defective as it was, and so near a dangerous 
 excavation, then their negligence, concurring with her 
 negligence, would defeat the action (Reynolds v. R. R., 
 58 N. Y. 248 ; Ihl v. R. R., 47 Id. 322)." 
 
 (e) Assuming such acts or omissions on the part of the 
 child as are mentioned in (b) above, two questions com- 
 monly arise : 
 
 (1) Was the child sui juris; or to what, if any, degree 
 of care must it be held ? 
 
 (2) If not sui juris, did the negligence of the parent 
 contribute to the injury? 
 
 (f) As to the first question, courts have sometimes held 
 as matter of law that a child of a certain age was or was 
 not responsible for his acts so as to be chargeable with 
 his own negligence. 
 
 Thus in Hartfield v. Roper, 21 "Wend. 615, it was held 
 that : " At the tender age of two or three years, and even 
 more, the infant cannot personally exercise that degree of 
 discretion which becomes instinctive at an advanced age, 
 and for which the law must make him responsible through 
 them if the doctrine of mutual care between the parties 
 using the road is to be enforced at all in his case." And 
 the same was held in Prendergast v. N. Y. C. & H. R. R. 
 Co., 58 N. Y. 652. 
 
 While in Messenger v. Dennie, 137 Mass. 197, it was held 
 that in case of a boy of eight years old his own acts were 
 as matter of law fatal to his recovery.
 
 Contributory Negligence. Ill) 
 
 The question of hoio far young persons in particular cases 
 are to be held responsible for their acts which in an adult would 
 prevent a recovery, is, hoivever, usually left to the jury to 
 determine. 
 
 The rule is variously stated ; the following examples 
 will suffice : 
 
 " The rule in regard to the negligence of an adult, 
 and that in regard to that of an infant of tender 
 years is quite different. The adult must give that care 
 and attention for his own protection that is ordinarily 
 exercised by persons of discretion and intelligence . . 
 Of the infant of tender years less discretion is required, 
 and the degree depends upon his age and knowledge. 
 The caution required is according to the maturity and 
 capacity of the child, and is to be determined in each case 
 by the attendant circumstances." 
 
 Chicago, &c. R. R. Co. v. Murray, 71 111. G01. 
 Government St. R. R. Co. v. Hanlon, 53 Ala. 70. 
 
 " There is no fixed age at which children are bound to 
 exercise the same diligence as adults. The question of 
 intelligence is always for the jury." 
 
 Houston Ry. Co. v. Simpson, 60 Tex. 103. 
 
 " The degree of care required of an infant, the omission 
 of which will constitute negligence on her part, is to be 
 measured in each case by the maturity and capacity of the 
 individual." 
 
 Thurber v. Harlem Br. <fec. R. R. Co., 60 N. Y. 326. 
 
 "The degree of care required of an infant depends upon
 
 150 Law. 
 
 temperament, characteristics and surroundings, and is a 
 question for the jury in each particular case." 
 
 Davis v. New York, N. H. & H. R. R. Co., 9 W. 
 Dig. 522. 
 
 Other cases upon this point are : 
 
 Railroad Co. v. Stout, 17 Wall. 657. 
 
 Fallon v. Cential Park, &c. R. R. Co., 64 N. T. 13. 
 
 Byrnj v. N. Y. C. t H. R. R Co., 83 N. Y. 620. 
 
 Dowling v. N. Y. C. & H. R. R. R. Co., 90 N. Y. 670. 
 
 Barry v. N. Y. C. H. R. R. R. Co., 92 N. Y. 289. 
 
 Jones v. Utica, &c. R. R. Co., 36 Hun, 115. 
 
 Ryan v. N. Y. C. & H. R. R. R. Co., 37 Hun, 186. 
 
 McGuire v. Spence, 91 N. Y. 303. 
 
 Kunz v. Troy, 5 N. Y. St. R. 642. 
 
 Thurber v. Harlem Br., &c. R. R. Co., 69 N. Y. 
 
 326. 
 Mangam v. Brooklyn Ry. Co., 38 N. Y. 455. 
 McGovern v. N. Y. C, &c. R. R. Co., 67 N. Y. 417. 
 Mowrey v. Cent City Ry., 66 Barb. 43 ; 51 N. Y. 
 
 666. 
 Miller v. McCloskey, 1 Civ. Pro. 252. 
 Finklestein v. N. Y. C, &c. R. R. Co., 41 Hun, 34. 
 Collins v. So. Boston Ry. Co., (Mass.) 34 A.L. J. 292. 
 
 (g) Under the rule laid down in the Honegsberger case, 
 if the infant were not responsible for his acts which in an 
 adult would be negligence, it would follow at once that 
 his parents or protectors were negligent. This, however, 
 is not the recognized rule. On the contrary, the courts 
 incline to leave this question to the jury to determine. 
 
 Mangam v. Brooklyn R. R. Co., 38 N. Y. 455. 
 Prendergast v. N. Y. C. & R. R. Co., 58 N. Y. 652. 
 Chrystal v. Troy & B. R. R. Co., 22 W. Dig. 551. 
 Kunz v. Troy, 5 N. Y. St. R. 642. 
 
 Thus it has been held not per se negligence to send
 
 Contributory Negligence. 151 
 
 children of certain ages to school, or otherwise into pos- 
 sible danger, without protection. 
 
 Drew v. Sixth Ave. R. R. Co., 26 N. Y. 49. 
 McGovern r. N. Y. (' ., &a R R. Co., 67 N.Y. 417. 
 Ihl v. Forty -second St. R. R. Co., 47 N.Y. 317. 
 Stafford v. Rubens, (111.) 3 No. East. R. 568. 
 
 And yet it has been recently held as matter of law 
 
 that the parents were so negligent that there could be no 
 
 recovery. 
 
 Schindler v. N. Y., Lake E. & W. R. R. Co., 1 N.Y. 
 
 St. Rep. 289. 
 Doran v. Troy, 22 W. Dig. 230. 
 
 (h) While a child of tender years is not held to the 
 same degree of diligence as an adult, when a child com- 
 plains of wrongs to himself, he cannot recover if he was 
 the heedless instrument of his own injury. 
 
 Flood v. Buffalo, &c. R. R. Co., 23 W. Dig. 501. 
 
 It seems to have been usually held in this State, how- 
 ever, that the same rules would govern under like circum- 
 stances, whether the action were brought by the child 
 itself or by the parent. 
 
 (i) In many States the doctrine of imputed negligence 
 of a parent to bar recovery by a child does not seem to 
 prevail, where the action is brought by the child. 
 
 Huff r. Ames, (Neb.) 30 Alb. L. J. 339. 
 
 Citing Daley v. Norwich, &c. R. R. Co., 26 Conn. 
 
 591. 
 Cleveland, &c. R. R. Co. r. Manson, 30 Ohio St. 451. 
 No. Pa. R. R. Co. r. Mahouey, 57 Penn. St. 187. 
 Whirley v. Whiteman, 1 Head, 610. 
 Government St. Ry. Co. v. Hanlon, 53 Ala. 70. 
 Norfolk, &c. R. R. Co. r. Ormsby, 27 Gratt. 455.
 
 152 Law. 
 
 But may prevent recovery by the parent suing for 
 
 services. 
 
 Huff? 1 . Ames, supra. 
 
 Citing Glassey v. Hestonville, &c. Ey. Co., 57 
 
 Penn. St. 172. 
 Louisville, &c. Canal Co. v. Murphy, 9 Bush 522. 
 Oil City Bridge Co. v. Jackson, (Pa.) 36 Alb. 
 
 L. J. 36. 
 
 12. Imputed negligence, (a) One who rides in the conveyance 
 of another, of tJie management of which that other has the 
 entire control, and the passenger has none, and is himsef ivith- 
 out negligence, is not bound by the other's negligence contribut- 
 ing to the injuries. 
 
 Chapman v. N. H. E. E. Co., 19 N. Y. 341. 
 Colegrove v. N. Y. & N. H. E. Co., 20 N. Y. 492. 
 Webster v. H. E. E. E. Co., 38 N. Y. 260. 
 Metcalf v. Baker, 11 Abb. Pr. N. S.431. 
 Platz v. Cohoes, 24 Hun, 101; 8 Abb. N. C. 392; 89 
 
 N. Y. 219. 
 Dyer v. Erie Ey. Co., 71 N. Y. 228. 
 Eobinson v. N. Y. O, &o. E E. Co., 66 N. Y. 11. 
 Scott v. Wood, 18 W. Dig. 441. 
 St. Clair St. Ey. Co. v. Eadie, (Ohio) 32 A. L. J. 64. 
 Follman v. Mankato, (Minn.) 34 A. L. J. 391. 
 Carlisle v. Brisbane, (Pa.) 34 A. L. J. 507. 
 Gaylord v. Syracuse, &c. E. E. Co., 23 W. Dig. 
 
 396. 
 Harvey v. New York, &c. E. E. Co., 23 W. Dig. 
 
 198. 
 McCallum v. Long Island E. E. Co., 38 Hun, 569. 
 Masterson v. New York C, &c. E. E. Co, 84 N. Y. 
 
 247. 
 Callahan v. Sharp, 16 W. Dig. 505. 
 But see Brown v. N. Y. C. E. E., 32 N. Y. 597. 
 
 In some of the above cases, the person injured was a 
 passenger of a common carrier ; in others, not ; in some, 
 was riding gratuitously ; in others, for hire. But the 
 same general rule was held to apply.
 
 CONTTJBUTOJ.V X I/, LICENCE. 153 
 
 The above rule v.-., • be at variance -with the 
 
 English case of Thorogood 8 Common B 
 
 115, in which it was held that a ; r in a coach 
 
 bound by the contributory j. of the dril 
 
 however, remarks upon that case at 19 N. \ . 343, and 38 
 N. Y. 262 . 
 
 (b) Where, however, (!■• ' of 
 
 (he, j>- '. or, if a 
 
 or protector, the ride 
 
 Doran r. Troy, 22 W. B 
 
 In such cases the vehicle may fa the 
 
 immediate control of th f >r the protector, 
 
 or else the driver may have been I I or servant. 
 
 In Callahan v. Sharp, 16 VV Dig. 505, it was held that 
 a person having a livery carriage and di: - not 
 
 bound by the negligence of the driver (thus overruling 
 S. C, 27 Hun, 85 
 
 Of oonrae, if the child were Bid juris the negligenct 
 
 the parent cannot be imputed to it. 
 
 Callahan r. Sharp, sup 
 
 Clair St. By. < Eadie, (Ohio; 32 Alb. L. J. 
 
 64, 
 
 In the former case the child v. 
 in the latter, thirteen. 
 
 13. Imminent danger. W 
 once in j 
 
 ■ 'Ty negUgetu Ihe be$t 
 
 l>of>bi)ti.K judgi
 
 154 Law. 
 
 Bernhard v. E., <fcc. E. E. Co., 1 Abb. Dec. 131. 
 Buel v. N. Y. C. E. E. Co. 31 N. Y. 314. 
 Coulter v. Am , &c. Ex. Co., 56 N. Y. 585. 
 Twomley v. Cent. Pk., N. & E. E. E. E. Co., 69 N. 
 
 Y. 158. 
 Lowery v. Manhattan Ey. Co., (N. Y.) 1 No. East, E. 
 
 608. 
 Dyer v. Erie Ey. Co., 71 N. Y. 228. 
 Voak v. No. C. Ey. Co., 75 N. Y. 320. 
 Cuyler v. Decker, 20 Hun, 173. 
 Steiverman v. White, 48 Super. 523. 
 Helmrich v. Hart, 16 W. Dig. 356. 
 Karr v. Parks, 40 Cal. 188. 
 Lawrence v. Green, (Cal.) 11 Pac. E. 750. 
 Stevenson v. Chicago, &c. E. E. Co., 18 Fed. Eep. 
 
 493. 
 Barton v. Springfield, 110 Mass. 131. 
 Siegrist v. Arnot, 10 Mo. Ap. 197. 
 Gunz v. Chicago, &c. Ey. Co., 25 A. L. J. 36. 
 Schultz v. Chicago, <fcc. Ey. Co., 44 Wis. 638. 
 
 Similar to the above — a person who, in a desperate 
 alternative, is injured while attempting to save the lives 
 of others, is not necessarily guilty of contributory negli- 
 gence. 
 
 Eoll v. N. C. Ey. Co., 15 Hun, 496. 80 N. Y. 647. 
 
 Eckert v. L. I. E. E. Co., 43 N. Y. 502. 
 Spooner v. D., L. & W. E. E. Co., 1 N. Y. St. Eep. 
 558. 
 
 14. Comparative negligence. In some States it is held 
 that the negligence of plaintiff and defendant may be 
 compared, and recovery had or refused, according to the 
 preponderance of evidence. 
 
 Ivens v. Cincinnati, &c. Ey. Co., (Ind.) 2 No. East. 
 
 E. 134. 
 Chicago, &c. Ey. Co. v. Payne, 59 111. 534. 
 Cbicago, &c. Ey. Co. v. Dimick, 96 Id. 42. 
 Calumet Iron, &c. Co. v. Martin, (HI.) 3 No. East. 
 
 E. 456. 
 Dush v. Fitzhugh, 2 Lea (Tenn.) 307. 
 Hughes v. Muscatine, &c. Co., 44 Iowa, 672.
 
 Contributory Negligence. 155 
 
 So far as this means merely that slight negligence on 
 the part of the plaintiff may not be fatal as against gross 
 neligence of the defendant, the New York courts have gone 
 far to hold it, through rejecting the doctrine of compar- 
 ative negligence as held in other States. 
 
 Clark r. Kirwan, 4 E. D. Smith, 21. 
 Green v. ErieRy. Co., 11 Hun, 333. 
 McGrath v. H. 11. R. R. Co., 32 Barb. 144. 
 
 In the Green case, the court hold that if the defendant 
 by the use of ordinary care could have prevented the 
 injury, the plaintiff may recover, though his negligence 
 contributed to the injury. 
 
 So in case of a child. 
 
 Connery v. Slavin, 23 W. Dig. 545. 
 
 15. Acts held not negligent to bar recovery. 
 
 Playing in street. 
 
 McGuire v. Spence, 91 N. Y. 303. 
 Kunz v. Troy, 5 N. Y. St. R. 642. 
 
 Standing in street. 
 
 Hussey v. Ryan, (Md.) 4 East. R. 4G2. 
 
 Driving in dark night in country without lantern. 
 
 Chamberlin v. Ossipee, 60 N. H. 212. 
 Daniels v. Lebanon, 53 N. H. 284. 
 
 Deviating from street line to pass excavation. 
 Vale v. Bliss, 50 Barb. 358.
 
 156 Law. 
 
 Driving in dark and allowing horses to pick their 
 
 way. 
 
 Eector v. Pierce, 3 T. & C. 416. 
 
 16. Aggravating injury by subsequent carelessness. While 
 this subject does not come strictly within that of neg- 
 ligence contributory to the injury, its practical bearing 
 is analogous, and it will be considered here. 
 
 The rule may be stated as follows : 
 
 One who is injured by the negligence of another is bound to 
 use ordinary care to effect his cure and restoration; but he is not 
 responsible for a mistake, and ivhen he acts in good faith and 
 under the advice of a competent physician, even if it is 
 erroneous, the error ivitt not shield the wrong-doer. 
 
 Lyons v. Erie Ry. Co., 57 N. Y. 489. 
 Hope v. Troy & L. R. R. Co., 40 Hun, 438. 
 Loser v. Humphrey, 41 Ohio St. 378. 
 Pullman, &c. Co. v. Bluhm, 109 111. 20. 
 
 In Hope v. Troy & Lansingburgh E. B. Co., where 
 there was evidence that the plaintiff had exposed her- 
 self after the injury, and her recovery was hindered 
 thereby, the court say the question of her con- 
 tributory negligence "depended on whether she went 
 out against her own judgment, recklessly and carelessly, 
 or whether she had occasion to go out, and felt she could 
 do so without being guilty of want of fair care and 
 caution." 
 
 (a) The evidence of such negligence is proper in miti- 
 gation of damages. 
 
 Carpenter v. Blake, 75 N. Y. 12. 
 Crete v. Childs, 11 Neb. 252.
 
 CHAPTER XIV. 
 
 SOME SPECIAL DANGERS. 
 
 1. Ice as an obstruction. 
 
 2. Injuries by coasters. 
 
 1. Ice as an obstruction. Iu northern latitudes, where 
 show falls and ice forms, a very large number of injuries 
 are caused by falling iipon the streets and sidewalks thus 
 rendered slippery. These give rise to endless litigations, 
 in which usually municipal corporations are defendants, 
 although in some instances individuals are charged upon 
 the theory that the ice was caused by their acts. 
 
 In these actions it is usually sought to charge munici- 
 pal corporations upon the ground of the general liability 
 to keep their streets in reasonably safe condition for 
 travel. They are charged with faults of omission — not 
 of commission. 
 
 The principles of law governing these cases are the 
 same as in case of other obstructions rendering streets 
 unsafe, and many of this class of cases are cited under the 
 respective subjects which they illustrate. 
 
 It is only purposed to notice here some discussion as 
 
 to when ice forms an obstruction at all so that a city may 
 
 be charged with negligence in not removing it 
 
 [157]
 
 158 Law. 
 
 (a) That ice and snow often render streets less safe 
 than they otherwise would be, is self-evident. But much 
 difference of opinion has arisen as to whether ice, though 
 admittedly dangerous, is therefore such an obstruction as 
 will charge a city with negligence. 
 
 There is probably no dispute but that snow and ice 
 may exist upon a street in such shape as to form an 
 obstruction ; for instance, when it is heaped up, or pre- 
 sents a rough or uneven surface. 
 
 Street v. Holyoke, 105 Mass. 82. 
 McAuley v. Boston, 113 Mass. 503. 
 Providence v. Clapp, 17 How. (U. S.) 161. 
 McLaughlin v. Corry, 77 Penn. 109. 
 
 The distinction has often been taken that while ice in 
 
 ridges or hummocks may be termed an obstruction, 
 
 smooth ice is not. 
 
 Stanton v. Springfield, 12 Allen, 566. 
 Luther v. Worcester, 97 Mass. 268. 
 Pinkham v. Topsfield, 104 Mass. 78. 
 Broburg v. Des Moines, 63 Iowa, 523. 
 Chicago v. McGiven, 78 111. 347. 
 Smyth v. Bangor, 72 Maine, 249. 
 Mauch Chunk v. Kline, 100 Penn. St. 119. 
 
 In Stanton v. Springfield, the court say : " No reported 
 case is found, in which it has been decided that a way is 
 defective merely because it is slippery, if in all other 
 respects in good order and properly constructed, and the 
 ice constituting no obstruction except by its smoothness." 
 
 Although this distinction has probably not been 
 squarely taken in any decision in New York, yet stress is 
 laid in many cases upon the fact that the ice in given 
 cases was in fact uneven.
 
 SrEciAL Dangers. 1£9 
 
 In Durkin v. Troy, Gl Barb. 437, and Mosey v. Troy, 
 Id. 580, the respects of counsel were paid to the law of 
 Massachusetts cases holding to the distinction, but the 
 court seems in neither case to have found the determina- 
 tion of the question necessary. 
 
 In the following cases it has been recognized as a rule 
 that glare and smooth ice upon a sidewalk may be as much 
 an obstruction as that which is rough or uneven. 
 
 Cloughessy v. "Water-bury, 51 Conn. 405. 
 Kinney v. Troy, 38 Hun, 285. 
 
 See also dissenting opinion in 
 
 Muller v. Newburgh, 32 Hun, 24. 
 
 It is true that a rule which should make municipal 
 corporations liable for every injury caused by their 
 streets being rendered unsafe by the elements would be 
 unjust. It is in view of this evident difficulty that it is 
 often held that cities cannot be held accountable for 
 obstructions caused by the storms of the season unless 
 they have sufficient time, after notice, actual or construct- 
 ive, to make the streets safe. 
 
 Gibson v. Jobnson, 4 HI. Ap. 288. 
 Sae also cases cited at page 124. 
 
 But that would seem the more reasonable rule which 
 treats that as an obstruction which renders the street 
 unsafe, no matter what its nature or how it may be caused, 
 and one for which a city may be liable under proper 
 circumstances, but leaves the jury to determine each 
 particular case with reference to the elements of reasona- 
 ble care and notice.
 
 160 Law. 
 
 It is true tliat ice naturally becomes ridged and uneven 
 by accumulation, and that accumulations of ice may be 
 more exactly obstructions than ice which is smooth. 
 
 Moreover, that accumulation implies time, and time is 
 an element of constructive notice. But it would seem 
 that the reasoning is fallacious of those cases in which 
 smooth ice is deemed to be not an obstruction for which 
 a city may be liable ; first, in that it fails to recognize the 
 principle that safety is the thing to be achieved, and that 
 whatever tends to produce unsafety is an obstruction 
 within the use intended for the word in this connection ; 
 and second, in failing to recognize that smooth ice may 
 have been just as long accumulating as rough, and con- 
 structive notice to the city may be just as well 
 established. 
 
 (b) In some cases where cities have been held liable 
 the defect has been caused in part by the ice and in part 
 by the defective walk beneath. 
 
 Atchison v. King, 9 Kan. 553. 
 
 Mauch Chunk v. Kline, 100 Pa. St. 119. 
 
 In the latter case, the ice formed over cobble-stones 
 laid between the flat stones upon the walk. 
 
 2. Injuries by coasters. Attempts have been made to 
 charge municipal corporations with liability for injuries 
 sustained by reason of coasting upon their streets. 
 
 Two classes of cases arise. 
 
 (a) Where recovery is sought upon the general ground
 
 Special Dangers. 161 
 
 that coasting renders the streets unsafe, and so it is a 
 defect which the city should remedy. 
 
 Upon this it was held that no such liability exists, in 
 
 Faulkner o. Aurora. 85 Ind. 130. 
 Shepherd v. Chelsea. 4 Allen, 113. 
 Pierce v . New Bedford 129 Mass. 534. 
 Hutchinson v. Concord, 41 Vt. 271. 
 Bay j>. Manchester, 46 N. H. 59. 
 Lafayette v. Timberlake, 88 Ind. 330. 
 Calwell v. Boone, 51 Iowa, 687. 
 
 In Faulkner v. Aurora, it was also held that the city 
 would neither be liable because of its failure to prohibit 
 coasting by ordinance, nor for the failure of its officers to 
 enforce an ordinance prohibiting coasting upon the streets. 
 
 (b) "Where the city licenses coasting generally or sets 
 aside particular streets for that purpose. In such cases 
 it is sought to charge the corporation as having licensed 
 a. nuisance. 
 
 In Baltimore v. Marriott, 9 Md. 1G0, the city was 
 held liable upon that ground ; and in Schultz v. Milwaukee, 
 49 Wis. 254, is a dictum to the same effect. 
 
 The contrary was held in 
 
 Burford r. Grand Bapids, 18 No. "West. Bep. 571; 
 
 29 Alb. L. J. 263. 
 Steele v. Boston, 128 Mass. 583. 
 
 1(
 
 CHAPTER XV. 
 
 SHITTING LIABILITY. EECOVEBY O^EB, 
 
 A. Shifting Liability. 
 
 1. By ordinance. 
 
 2. By charter. 
 8. By contract. 
 
 4. Obstruction by railroads. 
 
 B. Becovery Over. 
 
 1. General rule. 
 
 2. Ground of liability. 
 
 3. None against abutting owner. 
 
 4. Notice. 
 
 A. Shifting Liability. 
 
 1. By ordinance. A municipal corporation cannot relieve 
 ■itself from liability for negligence in the care of its streets by 
 imposing the same duty upon the owners of adjoining lots. 
 
 Wallace v New York, 18 How. Pr. 169. 
 Wilson v. New York, 1 Denio, 595. 
 Cushen v. Auburn, 22 W. Dig. 387. 
 Baltimore v. Marriott, 9 Md. 160. 
 Hayes v. Cambridge, 138 Mass. 461. 
 Taylor v. Yonkers, 26 W. Dig. 376. 
 
 Though it has been held that a city may excuse itself 
 from liability by an ordinance requiring one licensed to 
 
 [182] .
 
 Shifting Liability. 163 
 
 obstruct the streets for building purposes to place lights 
 at the obstruction. 
 
 McKenna v. New York, 47 Super. 541. 
 
 Also that it is proper to prove the existence of an 
 ordinance as some evidence to warrant the presumption 
 by the city that it would be obeyed. 
 
 Eeed v. New York, 31 Hun, 311. 
 
 Knupfle v. Knickerbocker Ice Co., 84 N. Y. 488. 
 
 In Illinois it is held that a city has not the constitu- 
 tional power to compel owners or occupants of premises to 
 keep the sidewalks and gutters clear of snow and ice, or 
 sprinkled with ashes or sand in case it cannot be removed. 
 
 Chicago v. O'Brien, 111 111. 532. 
 
 This is believed to be the rule nowhere else. 
 Notes of Cases, 31 Alb. L. J. 362. 
 
 2. By charter. -^ charter jirovision requiring ht-oicncrs to 
 keep their sidcivalks in repair does not raise the presumption 
 that the lot-owner has done his duty, so as to free the city (there 
 being no proof of any requisition on the lot-oicner). 
 
 Niven r. Eochester, 76 N. Y. 619. 
 
 Cain r. Syracuse, 29 Hun, 105; 95 N. Y. 83. 
 
 Cushen v. Auburn, 22 W. Dig. 387. 
 
 Nor where the municipal authorities are authorized to 
 compel owners or occupants to repair sidewalks or in 
 default to do it themselves, does the service of notice to 
 repair upon the owner free the city. 
 
 Bussell v. Canastota, 98 N. Y. 496.
 
 164 Law. 
 
 3. By contract. ^ municipal corporation cannot escape re- 
 sponsibility for non-observance of its duty to Jceep its streets in 
 repair, upon the plea that it has contracted with another party 
 
 to repair them. 
 
 Jacksonville v. Drew, 19 Flor. 106. 
 
 4. Obstruction by railroad. A municipal corporation is 
 liable when the obstruction is placed by a railroad company, the 
 same as though it tvere placed by an individual. 
 
 Sides v. Portsmouth, 59 N. H. 24. 
 
 And this is true whether the railroad company used 
 the street under license from the city, 
 
 Campbell v. Stillwater, 32 Minn. 308. 
 
 or under a statute imposing a liability to keep the 
 street in repair. 
 
 Tierney v. Troy, 41 Hun, 120. 
 
 B. Eecovery Over. 
 
 1. General rule. Where a person has negligently or unlaw- 
 fully created an obstruction or defect in a street of a. municipal 
 corporation, and the latter has been compelled to pay a judgment 
 recovered against it, for damages sustained by an individual 
 caused by such defect, it has an action over against such person. 
 
 Port Jervis v. First Nat. Bk. of P. J., 96 N. Y. 550. 
 Bochester v. Montgomery, 72 N. Y. 65. 
 Seneca Falls v. Zalinski, 8 Hun, 571. 
 Troy v. Troy & L. E. B. Co., 49 N. Y. 657. 
 Brooklyn v. Brooklyn City B. B. Co., 47 N. Y. 475. 
 Catterlin v. Frankfort, 79 Ind. 547. 
 Bobbins v. Chicago, 4 Wall. 657. 
 Lowell v. Short, 4 Cush. 275. 
 Boston v. Worthington, 10 Gray, 496.
 
 Recovery Over. 165 
 
 2. Grounds of liability, (a) Licensee. In case the ob- 
 struction was caused by a licensee, tlie ri^lit of recovery 
 over depends upon his contract, express or implied, to 
 perform the act permitted in such a manner as to protect 
 the public from danger and the municipality from liability. 
 
 Port Jervis v. First Nat. Bank, 9(5 X. Y. 550. 
 Brooklyn v. Brooklyn City R. R. Co., 47 N. Y. 475. 
 Congreve v. Morgan, 18 N. Y. 84. 
 Troy v. Troy & L. B. R. Co., 49 N. Y. 657. 
 
 In the first two cases, the liability was implied ; in the 
 last, expressed in the contract. 
 
 And the fact that the obstruction was made with the 
 knowledge of the city places the person at fault on the 
 same ground as the licensee. 
 
 Seneca Falls v. Zalinski, 8 Hun, 571. 
 
 In such a case the licensee can not defend upon the 
 ground that the work was done for him by an independ- 
 ent contractor. 
 
 Robbins v. Cbicago, 4 Wall. 657. 
 
 (b) Contractor. In case of work done for the city upon 
 contract, the liability of the contractor must be expressed, 
 and in case it is not and a judgment is procured against 
 the city it cannot recover over against the contractor. 
 
 Buffalo v. Holloway, 7 N. Y. 493. 
 
 (c) Wrong-doer. A person causing a street to be un- 
 safe while doing an act without contract or license is 
 liable to recovery over, upon the principle that he is a 
 guarantor of the safety of the street.
 
 166 Law. 
 
 3. Abutting owner. The abutting owner is not without 
 statute or charter liable for the care of streets. In such a case 
 there can be no recovery over. 
 
 Fulton v. Tucker, 5 T. & C. 621. 
 
 4. Notice. Notice of suit brought and opportunity to 
 defend is usually given the person causing the obstruc- 
 tion, by the corporation intending to hold him to recovery 
 over. 
 
 The nature and precise effect of this notice give rise 
 to some questions. 
 
 (a) Express notice is unnecessary. It is enough that 
 the party knew the suit was pending and might have 
 defended it. 
 
 Bobbins v. Cbicago, 4 Wall. 657. 
 Port Jervis v. First Nat. Bk., 96 N. Y. 550. 
 Barney v. Dewey, 13 Jobns. 224. 
 Beers v. Pinney, 12 Wend. 309. 
 Heiser v. Hatch, 86 N. Y. 614. 
 
 (b) The omission to give notice does not go to the right 
 of action, but simply changes the burden of proof, and im- 
 poses upon the party against whom the action was recov- 
 ered the necessity of again litigating and establishing all 
 the actionable facts. 
 
 Port Jervis v. First Nat. Bk., supra. 
 Aberdeen v. Blackmar, 6 Hill, 324. 
 Bridgeport Ins. Co. v. Wilson, 34 N. Y. 275. 
 Binsse v. Wood, 37 N. Y, 526. 
 
 (c) With notice, the record of the judgment against the 
 city is competent evidence against the obstructor, and is
 
 Recovery Oter. 167 
 
 conclusive as to his liability and as to the amount of 
 recovery. 
 
 Troy r, T. & L. R. R. Co,, 49 N. Y. 657. 
 
 Conclusive so far as relates to the cause of action, 
 amount of damages, and other matters necessarily involved 
 therein. 
 
 Seneca Falls v, Zalinski, 8 Hun, 571, 
 
 Conclusive both as to liability of corporation to person 
 injured and as to any matter which might have been 
 urged as a defense ; so as to contributory negligence. 
 
 Rochester v. Montgomery, 72 N. Y. 65. 
 Boston v. Worthington, 10 Gray, 496. 
 
 As to the measure of damages, some question of its 
 conclusiveness in cases where the liability depends on 
 contract was raised in Brooklyn v. Brooklyn City R. R. 
 Co., 47 N. Y. at p. 481, but it is assumed to apply to such 
 a case in Rochester v. Montgomery, at p. G7.
 
 PART II. 
 PRACTICE. 
 
 The grouping of the following subjects under the 
 generic head of practice, will undoubtedly form an arbi- 
 trary arrangement and one not strictly correct in many 
 particulars. The idea is, however, to take the position, 
 as well as may be, of the practitioner to whom a city- 
 negligence case is brought, and to consider some of the 
 practical questions that are likely to arise prior to and 
 during the trial. 
 
 CHAPTER I. 
 
 STATUTE OF LIMITATIONS. 
 
 1. Introductory. 
 
 2. Action by person injured. 
 
 3. Action for loss of services. 
 
 4. Injuries resulting in death. 
 
 5. Statute retroactive. 
 
 6. 62 How. Pr. 255. 
 
 7. Cohoes charter. 
 
 8. Schenectady charter. 
 
 9. In Oswego. 
 
 10. Limitation of notice. 
 [168]
 
 Statute of Limitations. 1C9 
 
 1. Introductory. The very first question to consider 
 is whether or not the time has elapsed within which an 
 action may be brought. That answered in the affirmative, 
 all further labor is wasted. 
 
 The statutes of different States being different, no 
 attempt will be made to consider them outside the State 
 of New York, nor will all the special statutes relating to 
 the several municipalities within the State be separately 
 treated. 
 
 It will be found that under different circumstances 
 three distinct rules apply : First, when the action is 
 brought by the person injured ; second, by a husband or 
 parent for loss of services ; third, for injuries resulting in 
 death. 
 
 2. Action by person injured. An action by the person in- 
 jured, to recover damages for a personal injury, resulting from 
 negligence, must be commenced within three years from the dale 
 of the injury. 
 
 Code Civ. Pro. \ 383, subd. 5. 
 
 Dickinson v. New York, 92 N. Y. 584. 
 
 Watson v. Forty- second St. R. R. Co., 93 N. Y. 522. 
 
 Webber v . Herkimer, <fec. R. R. Co., 35 Hun, 44. 
 
 Prior to 1876, the old Code provided that "an action 
 . . . for any other injury to the person ... of 
 another, not arising on contract, and not hereinafter 
 enumerated " should come within the six years limitation 
 class. 
 
 By Laws 1876, ch. 431, section 7, an action for injury 
 to the person was put in the one year class.
 
 170 Peactice. 
 
 But upon the enactment of the new Code in 1877 the 
 limitation was extended to six years, with a special ex- 
 ception in the case of personal injuries resulting from 
 negligence, which were put in the three years class, as 
 above stated. 
 
 In cities of 50,000 inhabitants and over, the action must 
 be commenced within one year. Laws of 1886, p. 501, § 1. 
 
 3. Action for loss of services. In this case the action is 
 brought by a husband to recover for loss of the services of his 
 wife by reason of an injury to her person, the six years limita- 
 tion applies. 
 
 Groth v. Washburn, 34 Hun, 509. 
 
 This upon the ground that an action is brought, not 
 for a personal injury at all, but for the result of an injury 
 to " his rights, interests and property." 
 
 4. Injuries causing death. In case the action is brought by 
 an executor or administrator of a person ivhose injuries 
 resulted in death, it must be brought within two years. 
 
 Code Civ. Pro. § 1902. 
 
 The preceding statute to the same effect was contained 
 in ch. 450, Laws 1847, as amended, Laws 1849, ch. 256, 
 and Laws 1870, ch. 78. 
 
 Under these statutes has been decided : 
 Bonnell v. Jewett, 24 Hun, 524. 
 
 5. Statute retroactive. Where one period of limitation is 
 in effect at the time of the injury, and another at the commence- 
 ment of the action, the latter prevails.
 
 Statute of Limitations. 171 
 
 Dubois r. Kingston, 20 Hun, 500. 
 Reversed on other grounds, 102 N. Y. 219. 
 Watson v. Forty-second St. R. R. Co., 93 N. Y. 522. 
 Hirsch r. Buffalo, 21 W. Dig. 312. 
 
 The contrary was held in : 
 
 Carpenter v. Shimer, 24 Hun, 464. 
 Goillotel r. New York, 87 N. Y. 440. 
 
 (Observe that in both the above Court of Appeals 
 decisions the ruling favors the plaintiff.) 
 
 6. Theory of 62 How. Pr. 255. It was held by the special 
 term, in Dickinson v. New York, upon a demurrer to the 
 defense of the statute of limitations, that an action brought 
 against the city for failure to keep its streets in repair, 
 was for a wrongful act rather than for negligence ; and 
 hence that the six years limitation applied. This was 
 reversed by the general term (28 Hun, 254), and the latter 
 judgment affirmed, at 92 N. Y. 584. 
 
 7. Under Cohoes charter. The provision of the Cohoes 
 charter (Laws 1869, ch. 912, title 13, section 5), that no 
 action against the city on a contract obligation or liabil- 
 ity, express or implied, shall be commenced except 
 within one year after the cause of action has accrued, was 
 held to apply to actions upon contracts only, in 
 
 McGaffin r. Cohoes, 74 N. Y. 387. 
 
 8. Schenectady charter. Laws 1882, ch. 294, provides 
 that all actions for defective streets must be brought 
 within one year.
 
 172 Practice. 
 
 Held constitutional in 
 
 Van Vranken v. Schenectady, 31 Hun, 516. 
 
 9. In Oswego. The period is fixed by statute at one 
 
 year. 
 
 Laws 1877, ch. 127, \ 15. 
 
 Dalrymple v. Oswego, 25 W. Dig. 332. 
 
 10. Limitation of notice. It should be added here that 
 the time for presentation of notice of claim is also some- 
 times limited. Thus, in each of the following cities to 
 three months. 
 
 Albany : 
 
 Laws 1883, p. 364, g 45. 
 
 Schenectady : 
 
 1 Laws 1882, p. 359, \ 4. 
 
 Oswego : 
 
 1 Laws 1877, p. 132, § 15.
 
 CHAPTER II. 
 
 NOTICE OF CLAIM. 
 
 A. New York Statute as to Costs. 
 
 1. Code Civ. Pro. \ 2345. 
 
 2. Act of 1859. 
 
 3. Adjudications. 
 
 4. Does not apply to actions for wrongs. 
 
 B. New Yokk Act as to Certain Cities. 
 
 1. Statute. 
 
 2. Application. 
 
 C. Under Charters. 
 
 1. Provisions illustrated. 
 
 2. Application. 
 
 3. Construed prospectively. 
 
 4. Under Buffalo charter. 
 
 D. General Provisions. 
 
 1. Introductory. 
 
 2. To whom presented. 
 
 3. What to present. 
 
 4. Amount claimed. 
 
 5. Contents of notice. 
 
 Having decided in a given case that it is not too late 
 to seek a remedy, the next requisite is a presentation of 
 a claim for relief, where required, to some officer or de- 
 partment of the corporation designated by statute for that 
 purpose. The several statutes will not be considered. 
 Sometimes they relate to entire States, sometimes to sin- 
 gle cities. 
 
 [173]
 
 174 Practice. 
 
 In New York there are a general law, making the 
 recovery of costs in certain actions against municipal 
 corporations dependent on the presentation of a claim, 
 and numerous special charter provisions, the nature and 
 effect of the two being quite distinct. And, in addition 
 to these, a general provision for notice to the corporation 
 attorney in cities of 50,000 population or over. 
 
 A. New York Statute as to Costs. 
 
 1. Code Civ. Pro. § 3245. " Costs cannot be awarded to 
 the plaintiff in an action against a municipal corporation 
 in which the complaint demands a judgment for a sum of 
 money only, unless the claim upon which the action is 
 founded was, before the commencement of the action, 
 presented for payment to the chief fiscal officer of the 
 corporation." 
 
 2. Act of 1859. This is the successor of a similar act 
 (Laws 1859, ch. 262, § 2), differing from it only in restrict- 
 ing the demand to one for a sum of money only. 
 
 3. Adjudications have been had upon various points 
 relative to this section : such as that it does not apply in 
 justices' courts. 
 
 Marsh v. Lansingburgh, 31 Hun, 514. 
 
 That it does not apply to costs on appeal. 
 
 Utica Water Works v. Utica, 31 Hun, 426. 
 
 That in Kingston the treasurer is the chief fiscal 
 
 officer. 
 
 Dressel v. Kingston, 32 Hun, 526.
 
 Notice of Claim. 175 
 
 That in Buffalo presentation to the common council is 
 sufficient, 
 
 Williams p. Buffalo, 25 Hun, 301. 
 
 and was in Kochester until 1880, 
 
 Butler r. Rochester, 4 Hun, 321. 
 
 when the treasurer was by statute made chief fiscal 
 
 officer. 
 
 Baine v. Rochester, 85 N. Y. 523. 
 
 That the lack of power in the fiscal officer to adjust 
 and pay the claim, does not excuse failure to present 
 
 it. 
 
 Baine v. Rochester, supra. 
 Judson v. Olean, 40 Hun, 158. 
 
 CJoYltVCL 
 
 Childs v. West Troy, 23 Hun, 68. 
 
 That in Hornellsville the chief fiscal officer is the 
 board of trustees, and not the treasurer. 
 
 Gage r. Hornellsville, 41 Hun, 87. 
 
 That plaintiff's failure to get costs does not give 
 costs to defendant. 
 
 Baine v. Rochester, supra. 
 
 4. No application in actions for wrongs. But all these, 
 and other adjudications upon this statute, are rendered 
 useless here in light of the recent decision of the court of 
 appeals, that the statute applies only to actions upon 
 contract.
 
 176 Practice. 
 
 A glance at some decisions upon this subject may be 
 interesting. 
 
 In Hart v. Brooklyn, 38 Barb. 226, decided in 1862, 
 the act of 1859 was held to apply to negligence cases. 
 
 In McClure v. Supervisors of Niagara, 3 Abb. Dec. 
 83 (1867), it was held to not so apply ; and the court rely 
 upon the reasoning of Howell v. Buffalo, 15 N. T. 512 
 (which, however, arose under a special provision of the 
 Buffalo charter), and assumes that if the court in decid- 
 ing the McClure case had had its attention called to the 
 Hart case, its decision would have been conformed to it. 
 
 In Childs v. West Troy, 23 Hun, 68 (1880), it was also 
 held to not apply, but the decision was placed strictly 
 upon the ground of the inability of the municipal officers 
 to audit a claim for a tort. 
 
 In Dressel v. Kingston, 32 Hun, 526 (1884), it was 
 decided by a divided court, upon the supposed authority 
 of Baine v. Bochester, 85 N. Y. 523, that the claim in a 
 negligence case must be presented, in order to obtain costs. 
 
 This was cited in Judson v. Olean, 40 Hun, 158, but 
 was unnecessary to the determination of the case. 
 
 The same was assumed in Fisher v. Cortland, 25 W. 
 Dig. 253. 
 
 In Taylor v. Cohoes, 35 Alb. L. J. 357, the court of 
 appeals have held directly that § 3245 and the act of 1859 
 apply only to actions upon contract, and point cut in the 
 opinion that the Baine case decided nothing to the con- 
 trary.
 
 Notice of Claim. 177 
 
 B. New York Act of 188G. 
 
 1. Statute. It is provided by chapter 572 of the Laws 
 of 1886, page 501, section 1, as follows: 
 
 " No action against the mayor, aldermen and common- 
 alty of any city in this State, having fifty thousand inhab- 
 itants, or over, for damages for personal injuries alleged 
 to have been sustained by reason of the negligence of 
 such mayor, aldermen and commonalt} T , or of any 
 department, board, officer, agent, or employee of said 
 corporation, shall be maintained, unless the same shall 
 be commenced within one year after the cause of action 
 therefor shall have accrued, nor unless notice of the 
 intention to commence such an action, and of the time 
 and place at which the injuries were received, shall have 
 been filed with the counsel to the corporation, or such 
 other proper law officer thereof, within six months after 
 such cause of action shall have accrued." 
 
 2. Application. This section in respect to the presenta- 
 tion of claims to the corporation attorney, or counsel, is 
 in addition to the notice required to be served upon the 
 comptroller of the city, or other officer, by charter, con- 
 sidered below ; and the notice here provided for should 
 probably not be served until the expiration of the term 
 of notice provided in such charters. 
 
 C. Under Charters. 
 
 1. Introductory. The charters of many municipal cor- 
 porations provide especially for the presentation of a 
 12
 
 178 Practice. 
 
 statement of the claim, sometimes as a condition prece- ( 
 
 dent to recovery at all ; 
 
 Charter of New York, 2 Laws 1882, p. 305, \ 1104. / 
 Charter of Albany, Laws 1883, p. 364, § 45. 
 Charter of Troy, 1 Laws 1872, p. 336, \ 10. 
 Charter of Buffalo, 2 Laws 1870, p. 1179, § 7. 
 
 sometimes as affecting only the question of costs. 
 
 Charter of Utica, Laws 1862, p. 76, § 123. 
 Charter of Binghamton, 1 Laws 1867, p. 642, § 7. 
 Charter of Auburn, Laws 1879, p. 99, § 140. 
 
 In the former case, the statute sometimes covers all 
 
 claims. 
 
 Charter of New York, supra. 
 
 Sometimes all unliquidated claims. 
 Charter of Buffalo, supra. 
 
 Sometimes all claims for injury to person or prop- 
 erty. 
 
 Charter of Troy, supra. 
 
 Sometimes claims arising from defective streets are 
 specified. 
 
 Charter of Albany, supra. 
 
 Charter of Oswego, Laws 1877, p. 132, \ 15. 
 
 Charter of Schenectady, 1 Laws 1882, p. 359, § 4. 
 
 Sometimes the statement must be verified. 
 Charters of Albany and Troy. 
 
 2. Application. Under different charters, these provi- 
 sions have been held to apply to negligence cases, in 
 
 Nagel v. Buffalo, 34 Hun, 1. 
 Duryea v. New York, 26 Hun, 120.
 
 Notice of Ciaim. 179 
 
 and that they do not, in 
 
 Quinlan v. Utica, 74 N. T. 603. 
 
 Ponifrey v. Saratoga Springs, 104 N. Y. 459. 
 
 3. Construed prospectively. Such statutes are to be con- 
 strued prospectively, and do not apply to cases where the 
 injury was sustained before the law went into effect. 
 
 Williams v. Oswego, 25 Hun, 36. 
 
 4. Buffalo charter. Under the provision of the Buffalo 
 charter, that all claims growing out of the water depart- 
 ment should be presented to the water-board, held that 
 this did not include claims for injuries caused by excava- 
 tions in streets made by the water department. 
 
 Brusso v. Buffalo, 90 N. Y. 679. 
 
 D. General Provisions. 
 
 1. Introductory. Irrespective of the particular statutes 
 requiring the presentation of claims, various questions 
 arise as to which adjudications are of more than local 
 value. 
 
 2. To whom presented. Must the claim be presented to 
 the officer named, in person ? 
 
 The answer to this question must of course depend 
 largely upon the words of the statute. 
 
 In McCabe v. Cambridge, 134 Mass. 484, where the 
 notice was required to be served on the city clerk, it was 
 held sufficient to serve it, in his absence, upon his assist- 
 ant in the city clerk's office.
 
 180 Practice. 
 
 In New fork it lias been held that under a charter 
 providing for presentation to the Common Council, deliv- 
 ery to its clerk was sufficient. 
 
 Murphy v. Buffalo, 22 W. Dig. 284. 
 
 3. What to present. The Troy charter provides that " no 
 civil action shall be maintained against the city by any 
 person for injuries to person or property, unless it appear 
 that the claim for which the action was brought was 
 presented to the comptroller, with an abstract of the facts 
 out of which the cause of action arose, duly verified by 
 the claimant, and that said comptroller did not, within 
 sixty days thereafter, audit the same." 
 
 Laws 1872, p. 336, \ 10. 
 
 Under this it has recently been held at circuit, in one 
 case, that the original claim must be presented, and not a 
 copy ; in another case, the paper left with the comptroller 
 was a copy, but the plaintiff's attorney testified that he 
 presented the original to the comptroller at the same 
 time at which he left the copy with him ; and the court 
 declined to hold the service void. The latter case, 
 Magee v. Troy, is now on its way to the general term. 
 
 4. Amount claimed. It is sometimes important to know 
 whether or not the amount claimed in the notice regu- 
 lates the amount for which suit may be brought. 
 
 Under the Kansas statute, similar to N. Y. Code, § 
 3245, it has been held that the plaintiff is not deprived of 
 his costs because he demanded more in the complaint 
 than was claimed in the notice. 
 
 Wyandotte v. White, 13 Kan. 191.
 
 Notice of Claim. 181 
 
 And to the same effect it has been held in two New 
 York cases, under charters making the presentation of a 
 claim a pre-requisite to recovery. 
 
 Minick v. Troy, 83 N. Y. 514. 
 Keed v. New York, 97 N. Y. 620. 
 
 5. Contents of notice. What constitutes sufficient notice 
 under a given statute is a question for the court. 
 
 Chapman v. Nobleboro, 76 Maine, 427. 
 
 The object and general character of the notice have 
 been well defined as " such precise information as would 
 enable the officers to inquire into the facts intelligently." 
 
 Shaw v. Waterbury, 46 Conn. 263. 
 
 The following decisions upon this point may be useful. 
 
 (a) Place of injury. Only a reasonable degree of par- 
 ticularity is required ; 
 
 Tuttle v. Winchester, 50 Conn. 496. 
 
 sufficient if place designated with such certainty that it 
 can be ascertained by the authorities, 
 
 Fopper v. Wheatland, 59 Wis. 623. 
 Fassett v. Roxbury, 56 Vt. 552. 
 
 even if in some particular the location be wrong, — 
 McCabe v. Cambridge, 134 Mass. 484. 
 
 e. g. t on the wrong side of the street. 
 
 Cloughessy v. Waterbury, 51 Conn. 405.
 
 182 Practice. 
 
 It may be sufficient : 
 
 When it describes the place as at the corner of two 
 ways, without specifying which corner. 
 
 Sargent v. Lynn, 138 Mass. 599. 
 
 If it name the house, street, and side of street. 
 Savory v. Haverhill, 132 Mass., 324. 
 
 If it describe an obstruction between two given resi- 
 dences, even though at some distance apart, and others 
 were between them, if there is only one such obstruction 
 in that locality. 
 
 Melendy v. Bradford, 56 Vt. 148. 
 
 If it describe a large hole in a planking, though two 
 smaller ones near. 
 
 Lyman v. Hampshire Co., 138 Mass. 74. 
 
 But was held not sufficient when it described the locus 
 in quo as 
 
 A " rough, hobbly and slippery " sidewalk between 
 two named streets, which were 200 feet apart. 
 
 Cronin v. Boston, 135 Mass. 110. 
 
 On north side of street, when accident really happened 
 on south side. 
 
 Shallow v. Salem, 136 Mass. 136. 
 
 On a given street which proved to be two miles long. 
 Donnelly v. Fall Biver, 130 Mass. 115.
 
 Notice of Cladl 183 
 
 (b) Time. Held sufficient: 
 
 Naming day, unless time of day important. 
 
 Donnelly v. Fall River, 132 Mass. 294. 
 Savory v. Haverhill, Id. 324. 
 
 "Christmas morning." 
 
 Taylor v. Worcester, 130 Mass. 494. 
 
 Day held not sufficient. 
 
 White r. Stowe, 54 Vt. 510. 
 
 (c) Cause. It has been held sufficient to state that 
 the fall was " consequent upon the icy and slippery con- 
 dition of the said sidewalk." 
 
 Dalton v. Salem, 136 Mass. 278. 
 
 That the claimant was " thrown into a ditch." 
 Bailey v. Everett, 132 Mass. 441. 
 
 But not euough to state the cause simply as the " de- 
 fective and dangerous condition of the way," or an ob- 
 struction in the way, without specifying the particular 
 
 danger. 
 
 Nourse v. Victory, 51 Vt. 275. 
 Noonan v. Lawrence, 130 Mass. 161. 
 Roberts v. Douglass, (Mass.) 2 East. R. 114. 
 
 It has been held that a notice of injury by an iron 
 grating will not cover a fall on ice. 
 
 McDougal v. Boston, 134 Mass. 149. 
 
 But the court declined to rule as matter of law that 
 a notice of injury caused by " the improper grading of the
 
 184 Practice. 
 
 said road and the want of proper railing by the side of 
 said road," did not embrace an improper declivity of a 
 gutter at the road side. 
 
 Spooner v. Freetown, 139 Mass. 235. 
 
 It is enough if it states the proximate cause. 
 
 Grogan v. Worcester, (Mass.) 2 East. E. 735. 
 
 (d) Nature of injury. It has been held that a notice 
 stating that the claimant was " violently shaken up and 
 jarred in his fall to the ground," permits proof of all the 
 injuries sustained. 
 
 Wadleigh v. Mt. Vernon, 75 Me. 79. 
 
 That " injury to spine near shoulders " covers injury 
 to spine between the shoulder blades. 
 
 Fassett v. Roxbury, 55 Vt. 552. 
 
 But that simply mentioning " injuries that I sustained " 
 is not enough. 
 
 Low v. Windham, 75 Me. 113.
 
 CHAPTER III. 
 
 PLEADINGS. 
 
 A. The Complaint. 
 
 1. Code requisites. 
 
 2. Particular requisites. 
 
 3. Adjudications. 
 
 B. The Answeb. 
 
 A. The Complaint. 
 
 1. Code requisites. The New York Code prescribes the 
 general requisites of a complaint as : 
 
 (1) Title of cause, and if in supreme court, name of 
 county. 
 
 (2) Names of parties. 
 
 (3) "A plain and concise statement of the facts con- 
 stituting each cause of action, without unnecessary repe- 
 tition." 
 
 (4) Demand of judgment. 
 
 It is with a view to this system of pleading only that 
 the following suggestions are given as to the prepara- 
 tion of a complaint against a municipal corporation for 
 
 neglige n ce -inj urie s. 
 
 [185]
 
 186 Practice. 
 
 2. Particular requisites. What are the " facts constitut- 
 ing a cause of action " ? 
 
 It is believed that the following list embraces all the 
 usual requisites, and possibly also some which are un- 
 necessary. It is believed to outline a safe pleading. 
 
 (a) State character of defendant ; that it is a domestic 
 municipal corporation. 
 
 (b) Its duty, statutory or otherwise, to keep its streets 
 reasonably safe for travel. 
 
 (c) That the place of injury was a street of the city. 
 
 (d) The location. 
 
 (e) The defect or obstruction. 
 
 (f) Notice thereof to the defendant. 
 
 (g) The negligence of the defendant, 
 (h) The care of the plaintiff. 
 
 (i) The injury. 
 
 (j) The damage. 
 
 (k) The presentation of notice under charter, with fail- 
 ure to audit, and expiration of time. 
 
 (1) Notice to law-officer under act of 1886. 
 
 In case the action is brought by a personal represen- 
 tative, add also : 
 
 (m) The fact of death. 
 
 (n) The authority of plaintiff to sue. 
 
 (o) The survival of beneficiaries.
 
 Pleadings. 187 
 
 If brought for loss of services of wife or child, add 
 proper allegations for such purposes. 
 
 If brought for an infant by its guardian ad litem, allege 
 appointment and qualification. 
 
 3. Adjudications. With regard to some of the above, 
 certain decisions may be noted. 
 
 (a) The complaint must allege negligence of the de- 
 fendant. 
 
 Rushville v. Poe, 85 Ind. 83. 
 
 (b) Also notice of defect, actual or constructive. 
 
 Noble v. Richmond, 31 Gratt. (Va.) 271. 
 
 Demurrable if not alleged. 
 
 Spiceland v. Alier, 96 Ind. 467. 
 
 (c) It is usually held that the absence of contributory 
 negligence need not be pleaded. 
 
 Wolfe v. Supervisors of Richmond Co., 19 How. 
 
 Pr. 370. 
 Urquhart v. Ogdensburgb, 23 Hun, 75. 
 Lee v. Troy City Gas-Light Co., 98 N. Y. 115. 
 Street R.R. Co. v. Noltbenius, 40 Ohio St. 376. 
 Lopez v. Cent. Ariz. Mfg. Co., 1 Ariz. 4S4. 
 Holt v. Whatley, 51 Ala. 569. 
 Texas, &c. R. R. Co. v. Murphy, 47 Tex. 356. 
 Bedford, &c. R. R. Co. v. Rainbolt, 99 Ind. 561. 
 
 (d) As to the nature of the injury it is competent to 
 prove permanent disease of the spine under an allegation 
 of " great bodily injury." 
 
 Ehrgott v. New York, 96 N. Y. 264.
 
 188 Practice. 
 
 (e) Damages. All damages which are the direct result 
 of the injury may be recovered under a general averment. 
 
 Cabot v. Kane, 1 N. Y. St. B. 495. 
 
 If a father would prove special damage until the 
 majority of his infant son he must allege it. 
 
 Gilligan v. N, Y. & H. E. R. Co., 1 E. D. S. 453. 
 
 Complaint alleging general inability to pursue lawful 
 business admits proof of nature of business and wages, 
 and damages from interruption. 
 
 Luck v. Ripon, 52 Wis. 196. 
 Bloomington v. Chamberlain, 104 111. 268. 
 
 (f) Place of injury. Allegation of excavation " in and 
 on" an alley, sustained by proof that it was adjacent to 
 
 the alley. 
 
 Niblett v. Nashville, 12 Heisk. (Tenn.) 684. 
 
 (g) Presenting claim. When a statute makes notice 
 pre-requisite to action against a city, it must be pleaded. 
 
 Wentworth v. Summit, 60 Wis. 281. 
 Dorsey v. Racine, Id. 292. 
 Reining v. Buffalo, 102 N. Y. 308. 
 
 Overruling 
 
 Nagel v. Buffalo, 34 Hun, 1. 
 
 The charter of New York city provides that " no action 
 . . . shall be prosecuted or maintained, unless it shall 
 appear by and as an allegation ... in the complaint, 
 . . . that at least thirty days have elapsed since the
 
 Pleadings. 189 
 
 claim . . . upon which said action ... is founded 
 were presented to the comptroller, &c." 
 
 2 Laws 1883, p. 305, \ 1104. 
 
 That of Troy provides that " no civil action shall be 
 maintained, unless it appears that the claim was pre- 
 sented," &c. (1 Laws 1872, p. 33G, § 10), and the proof to 
 make it appear, of course, requires an allegation in the 
 pleading. 
 
 B. The Answer. 
 
 The legal advisers of municipal corporations usually 
 employ stereotyped forms of answer, in which nearly 
 every allegation of the complaint is put in issue and con- 
 tributory negligence set up as an affirmative defense. 
 
 Examples of these answers will be found, with other 
 forms, in an Appendix.
 
 CHAPTER IV. 
 
 SELECTION OF JURORS. 
 
 1. Introductory. 
 
 2. Inhabitants incompetent at common law. 
 
 3. Statutes. 
 
 4. Rejection of competent juror. 
 
 1. Introductory. An interesting question has arisen in 
 respect to the competency of the residents of a municipal 
 corporation bo sit as jurors in an action in which the city 
 or village is interested. 
 
 On the one hand, it is evident that such persons are 
 interested, for their eligibility to do jury duty at all 
 depends upon a property qualification ; and a judgment 
 against a municipal corporation is a charge in some 
 degree upon every property owner within it. 
 
 On the other hand, in New York, where city and 
 county are co-extensive, no jury could be empanelled 
 under existing laws, for the trial of such an action. 
 
 2. Incompetent at common law. In Diveny v. Elmira, 51 
 N. Y. 506, the question presented was the direct one : "Is 
 a resident and tax-payer of the defendant corporation 
 incompetent as a juror?" And it was held that, in ab- 
 
 [190
 
 JUEORS. 191 
 
 sence of a statute to the contrary, they were incompetent. 
 The court say : " The object of the law is to procure 
 impartial, unbiased persons for jurors. Omni exceptione 
 majores. They must have no interest in the subject 
 matter of the litigation. In this case a verdict against 
 the city would impose additional burdens upon all tax- 
 paying residents thereof. Hence such residents are, at 
 common law, incompetent to serve as jurors in a case 
 in which the city is a party, or in which the city is 
 directly interested." 
 
 3. Statutes. As to some municipalities it is specially 
 provided by statute that residents and tax-payers shall 
 not for that reason be incompetent as jurors in city 
 cases. 
 
 The Troy statute is an example. 
 Laws 1816, ch. 1, \ 16. 
 
 4. Rejection of competent juror. The rejection of a compe- 
 tent juror is a ground of error, although the jurors who actually 
 try the case are competent. 
 
 Hildreth v. Troy, 101 N. Y. 234. 
 
 Upon the trial of this cause twelve persons drawn as 
 jurors were rejected upon the ground that as residents of 
 the city they were interested in the result of the action ; 
 the court and plaintiff's counsel not probably recalling 
 the statute above cited. This was held error by both the 
 higher courts. 
 
 The cases relied upon by plaintiff were :
 
 192 Practice. 
 
 Tweed v. Davis, 1 Hun, 252. 
 
 People v. Jewett, 3 Wend. 314. 
 
 Mullen v. Decker, 19 W. Dig. 426. 
 
 Grand Eapids, &c. Co. v. Jarvis, 30 Mich. 308. 
 
 The language relied on in Tweed v. Davis was that of 
 Mr. Justice Westbrook only, contained in his separate 
 opinion. Two jurors had been rejected on the ground of 
 incompetency, and their incompetency was conceded by 
 all the court. But Mr. Justice "Westbrook adds : " So long 
 as the defendant was tried by twelve others who were 
 competent, we do not see that the rejection of these two, 
 conceding their competency, could in any way prejudice 
 him [the appellant]." 
 
 The case of People v. Jewett was not less celebrated 
 in its day than the Tweed case, it being the trial of the 
 alleged murderer of the Freemason, William Morgan. 
 
 In that case, in selecting the grand jury, all Free- 
 masons were excluded, and the court held that a challenge 
 to the array would not be allowed upon that ground, if 
 the jurors returned were unexceptionable and possessed 
 the statutory qualifications.
 
 CHAPTER V. 
 
 THE PLAINTIFF'S CASE. 
 
 1. Introductory. 
 
 2. Incorporation. 
 
 3. Duty as to streets. 
 
 4. Presentation of notices. 
 
 5. Locus in quo. 
 
 6. The defect or obstruction. 
 
 7. The injury. 
 
 8. Burden of proof of negligence. 
 
 9. Notice. 
 
 10. Contributory neghgence. 
 
 11. Damages. 
 
 The three subjects last named will be considered in separate chapters. 
 
 1. Introductory. The burden is, speaking generally, upon 
 the plaintiff to establish all the allegations of the complaint, so 
 far as they are not admitted by the ansicer. 
 
 It is purposed to consider briefly each of these requi- 
 sites. 
 
 2. Incorporation. The incorporation of the city is usu- 
 ally admitted by the answer. If not, it need not be 
 proven, unless it be denied by a verified answer. 
 Code Civ. Pro. \ 1776. 
 
 The introduction of the charter is sufficient proof. 
 13 [193]
 
 194 Practice. 
 
 3. Duty as to streets. This, being statutory, may be 
 proven by introducing the charter or act under which the 
 city or village was incorporated, and especially those 
 parts in which that subject is particularly provided 
 for, — whether it be a direct provision or one making the 
 common council commissioners of highways. 
 
 Ellis v. Lowville, 7 Lans. 434. 
 
 This duty is not increased by the passage of an ordi- 
 nance requiring owners to remove snow and ice from in 
 front of their property. 
 
 Stanton v. Springfield, 12 Allen, 566. 
 
 Nor by the neglect to enforce such ordinances. 
 
 Stillwell v. New York, 49 N. Y. Super. (17 J. & 
 S.) 360. 
 
 4. Presentation of claim and of notice to law-officer. The 
 service of notices, wherever required either by charter or 
 general statute, might well be and often is admitted, 
 since the original paper is in the possession of city 
 officers. 
 
 Where, however, it is not admitted, its production 
 may be compelled by notice to produce, or by subpoena 
 duces tecum, or in failure thereof, proof may be made by 
 producing a copy with oral evidence of the original. 
 
 5. The locus in quo, and that it was a street. That the 
 locality of the accident was on a street, so as to charge
 
 The Plaintiff's Case. 195 
 
 the municipality with its care, may, if disputed, be one 
 of the most difficult questions in the case. 
 
 Where the street was designated as such in the char- 
 ter, or was established by statutory proceeding, or 
 declared such by statutory prescription, the matter of 
 proof is of course easy. In the first case, it is necessary 
 only to produce the charter ; in the second, to prove the 
 proceeding under the statute ; in the third, to show user 
 for the requisite time. The proof of user is not always 
 wholly without difficulty, but it is in theory simple. 
 
 In case it is sought to prove the existence of a street 
 by dedication, the proof is more complex. Here the 
 intent to dedicate by the owner of the fee must be 
 shown, and, independently of that, the acceptance by the 
 public. 
 
 Part L, chap. TV. B, contains suggestions that may be 
 useful in this connection. 
 
 In addition to what is there said, it may be added 
 that where, by reason of the newness of streets, or other- 
 wise, the question of acceptance by the city is in doubt, 
 it is sometimes possible to show that a given map, con- 
 taining the street, has been made or accepted by the 
 city. 
 
 If the acceptance of the map be actual, it may be 
 shown by the record of the proceedings of the common 
 council ; but it may be inferred from actions, as by the 
 city using or distributing copies of the map. 
 
 So again, implied acceptance may sometimes be shown 
 by proving that work had been done or ordered by the
 
 196 Peactice. 
 
 city upon the street, — such as the maintaining street 
 lamps, hydrants, &c. Here again the minutes of the 
 common council may come in play. 
 
 To obtain the minutes, if they are printed under the 
 certificate of the clerk that such printing was done by 
 direction of the common council, such printed volumes 
 may be put in evidence. Otherwise, the city clerk may 
 be subpoenaed to produce the original record. 
 
 If there is any evidence that the place was a public 
 street, the plaintiff is entitled to go to the jury upon that 
 question 
 
 Tierney v. Troy, 41 Hun, 120. 
 
 It should also be remembered that a way may be 
 treated as a street by a city, and so become such so far 
 as to charge the city with liability, though otherwise not 
 a street. 
 
 See Part I., chap. V., B, 3. 
 
 6. The defect or obstruction. The existence of the con- 
 dition which is claimed to be dangerous, and which 
 caused the plaintiff's injury, must, of course, be proven 
 by persons who knew of it. 
 
 "Where one person testifies that he pointed to 
 another the place where the accident occurred, it is com- 
 petent for the other to testify as to the condition of the 
 street before and at the time of the accident, although he 
 was not then present. 
 
 Hirsch v. Buffalo, 21 W. Dig. 312.
 
 The Plaintiff's Case. 107 
 
 Whether or not a given object constitutes an 
 obstruction, or a street is defective, is a question ordina- 
 rily for the jury to determine. 
 
 For the purpose of proving the existence of the 
 defect, it is competent : 
 
 To show the condition of the street the day after the 
 
 injury. 
 
 De Forest v. Utica, 69 N. Y. 614. 
 
 Albilene v. Hendricks, (Kan.) 13 Pac. R. 121. 
 
 That it was in the same condition a few days before 
 and after the accident. 
 
 Chicago r. Dalle, 115 111. 386. 
 
 That it was in the same condition ten days after, there 
 being no evidence of change. 
 
 Berrenberg v. Boston, 137 Mass. 231. 
 
 But that the city authorities have improved the con- 
 dition of a sidewalk since the injury to the plaintiff, is 
 not an admission that it was previously defective. 
 Cramer r. Burlington, 45 Iowa, 627. 
 
 Nor, in New York, is it competent evidence. 
 
 Dougan v. Cbamplain Trans. Co., 56 N. Y. 1. 
 Payne v. T. & B. R. R. Co., 9 Hun, 526. 
 Morrell r. Peck, 24 Hun, 38. 
 Moore v. Birdsall, 22 W. Dig. 530. 
 
 Contra in Kansas. 
 
 Emporia r. Schmidling, 33 Kan. 485. 
 
 It is incompetent to prove that other sidewalks in the 
 neighborhood were generally out of repair. 
 Ruggles v. Nevada, 63 Iowa, 185.
 
 198 Practice. 
 
 But if a sidewalk is unsafe for a long distance contin- 
 uously, it may all be shown, though the accident was at 
 
 one end. 
 
 Armstrong v. Ackley, (Iowa) 32 No. W. E. 180. 
 
 7. The injury. This must be proven, as to the acci- 
 dent itself, by the plaintiff or others who were present ; 
 as to the extent of the injury, by the plaintiff and others 
 who attended him, including physicians. The evidence 
 bearing upon this point will be considered in connection 
 with the subject of damages. 
 
 There must be positive proof that the injury was the 
 direct result of the defect. 
 
 Monohan v. Cohoes, 8 W. Dig. 528. 
 
 The plaintiff has the right to prove the res gestce. 
 
 Hallahan v. N. Y., L. E. & W. Ey Co., 102 N. T. 194 
 
 But declarations of the injured person after his injury 
 and while being taken away, as to how it happened (the 
 injury resulting in his death), are not competent. 
 
 Martin v. N. Y., &c. E. E. Co., 25 W. Dig. 197. 
 
 8. Burden of proof of negligence. The burden of proving 
 the negligence of the defendant is on the plaintiff. 
 
 Cordell v. New York Central, &c. E. E. Co., 75 N. 
 
 Y. 330. 
 Hale v. Smith, 78 N. Y. 480. 
 Freeh v. Phila., &c. E. E. Co., 39 Md. 574. 
 Wardwell v. New York, 1 N. Y. St. E. 784. 
 Merrill v. North Yarmouth, (Me.) 4 E. E. 936. 
 
 It will not be inferred from the mere fact of the acci- 
 dent. 
 
 Baltimore El. Co. v. Neal, (Md.) 5 Atl. E. 338.
 
 The Plaintiff's Case. 199 
 
 The plaintiff is not, however, bound to prove negli- 
 gence beyond a reasonable doubt. 
 
 Seybolt v. N. Y., L. E. &c. R. R. Co., 95 N. Y. 562. 
 Wiedmer v. N. Y. El. R. Co., 41 Hun, 284. 
 
 It may be proved by circumstances. 
 
 Hartr. Hudson R. Br. Co., 80 N. Y. 622. 
 
 For the purpose of establishing negligence, the 
 absence of gas or light may be considered. 
 
 Indianapolis v. Scott, 72 Ind. 196. 
 O'Hagan v, Dillon, 76 N. Y. 170-
 
 CHAPTER VL 
 
 NOTICE. 
 
 A. Acttjaij Notice. 
 
 1. Evidence competent. 
 
 2. Evidence not competent. 
 
 B. CONSTRUCTIVE NOTICE. 
 
 1. Eule. 
 
 2. Notoriety. 
 
 3. Length of time. 
 
 4. Weather records. 
 
 5. Other accidents. 
 
 6. Ordinances. 
 
 A. Actual Notice. 
 
 1. Evidence held competent. For the purpose of charg- 
 ing a city with actual notice of an obstruction or defect, 
 the following evidence has been held competent : 
 
 (a) That a councilman had notice of it. 
 
 Logansport v. Justice, 74 Ind. 378. 
 
 (b) Or a highway surveyor of a New England town. 
 
 Rogers v. Shirley, 74 Me. 144. 
 
 (c) That the street commissioners knew the whole 
 
 [200]
 
 Actual Notice. 201 
 
 sidewalk was old, rotten and unsafe, though ignorant of 
 the looseness of the particular plank causing the injury. 
 
 Ripon v. Bettel, 30 Wis. 614. 
 
 (d) That a street commissioner was informed of the 
 defect — coupled with the presumption that he performed 
 his duty of inquiring, after such information. 
 
 Welch v. Portland, 77 Me. 384. 
 
 (e) A book kept at the office of the city messenger, 
 containing complaint of the condition of the street. 
 
 Blake v. Lowell, (Mass.) 9 No. East. R. 627. 
 
 (f) The report of a street commissioner that a street 
 was unsafe. 
 
 Bond v. Biddeford, 75 Me. 538. 
 
 (g) Resolution of city council directing repairs of a 
 sidewalk. 
 
 Erd v. St. Paul, 22 Minn. 443. 
 Aurora v. Pennington, 92 111. 564. 
 
 2. Evidence not competent. On the other hand, proof 
 
 of repair after the accident is not competent to prove 
 
 notice. 
 
 Morse v. Minn. & St. L. P.. R. Co., (Minn.) 28 A. 
 L. J. 320. 
 
 Nor is notice to a policeman, unless he be an agent or 
 servant of the city ; and he is not so in Troy. 
 
 Kunz v. Troy, 36 Hun, 615. 
 
 [Rev. 5 N. Y.St. R. 642, but on other points.]
 
 202 Practice. 
 
 Nor in Buffalo. 
 
 McKay v. Buffalo, 9 Hun, 401 ; 74 N. Y. 619. 
 
 But is in New York. 
 
 Kehberg v. New York, 91 N. Y. 137. 
 Twogood v. New York, 102 N. Y. 216. 
 
 [For other cases on this point, see page 120, ante. 
 
 B. Constructive Notice. 
 
 1. Rule. Constructive notice is proven by showing that the 
 defect or obstruction causing the injury had existed so long and 
 under such circumstances before the injury that the agents of 
 the city actually kneiv, or, in the exercise of reasonable dili- 
 gence, should have known it. 
 
 2. Notoriety. This inference of notice may be derived 
 from its notoriety, — the knowledge of many citizens being 
 strong evidence of notice to the city. 
 
 Bill v. Norrick, 39 Conn. 222. 
 
 And notoriety may be shown by any witness cognizant 
 of the defect ; residents of the place or locality are not 
 
 necessary. 
 
 Varnham v. Council Bluffs, 52 Iowa, 698. 
 
 For the purpose of showing notoriety, it is competent 
 to prove who passed along the street, how frequently, 
 and how employed ; and to that end it was held not 
 incompetent to admit evidence of the patrolling of a 
 street by police. 
 
 Kinney v. Troy, 38 Hun, 285.
 
 CONSTBUCTIVE NOTICE. 203 
 
 3. Length of time. The length of time the defect had 
 existed before the injury is always important, and may be 
 shown by parol evidence, and by photographs, measure- 
 ments and models. 
 
 Quinlan v. Utica, 11 Hun, 217; 74 N. Y. 603. 
 
 In practice, especially in icy-sidewalk cases, the con- 
 tinuous icy condition for such a time as to charge the 
 city with constructive negligence is hard to prove, and 
 also hard to rebut. 
 
 In such cases, where the condition is apt to be con- 
 stantly changing by variations of temperature, great care 
 must be taken to show, as nearly as may be, a continuous 
 icy condition for as long a time as possible before the 
 injury. 
 
 And it is proper to reject evidence of such condition 
 at any particular time, — for example, a week before, — 
 unless it is shown to have continued. 
 
 Woodcock v. Worcester, 138 Mass. 268. 
 
 4. Weather records. The condition of the weather pre- 
 ceding the injury is often important, for the purpose of 
 determining the probable continuous existence of the 
 ice ; and this is conveniently and frequently shown by 
 the record of persons employed to take meteorological 
 observations by the United States signal service. 
 
 These were declared competent evidence, and reasons 
 given therefor in 
 
 Evanston v. Gunn, 99 U. S. 660.
 
 204 Practice. 
 
 5. Other accidents. One way of establishing the fact of 
 
 continuous obstruction is, by proving that others had 
 
 fallen or sustained injury at the same place, and prior to 
 
 the injury in suit. 
 
 Burns v. Schenectady, 24 Hun, 10. 
 
 Avery v. Syracuse, 29 Hun. 537. 
 
 Champlin v. Penn Yan, 34 Hun, 33. 
 
 Quinlan v. Utica, 11 Hun, 217 ; 74 N. Y. 603. 
 
 Dist. Col. v. Armes, 107 U. S. 519. 
 
 Delphi v. Lowery, 74 Ind. 520. 
 
 Smith v. Sherwood, (Mich.) 34 A. L. J. 119. 
 
 Chicago v. Powers, 42 111. 169. 
 
 Augusta v. Hafers, 61 Ga. 48. 
 
 Darling v. Westmoreland, 52 N. H. 401. 
 
 Kent v. Lincoln, 32 Vt. 591. 
 
 Yet such fact alone does not establish that the ob- 
 struction was actionable. 
 
 Dubois v. Kingston, 102 N. Y., 219. 
 
 In O'Hagan v. Dillon, 76 N. Y. 170, where evidence of 
 the recovery of a judgment for another injury at the 
 same place was rejected, there was no issue of notice, the 
 action being against the persons who caused the obstruc- 
 tion. 
 
 6. Ordinances. The existence of an ordinance direct- 
 ing how vault-covers shall be placed, held not evidence 
 of knowledge on the part of city, that if the provisions of 
 the ordinance were not observed, there would be danger 
 of slipping on the vault-covers. 
 
 Stillwell v. New York, 49 Super. 360. 
 
 Nor is a city responsible for the failure of household- 
 ers to obey its ordinances. 
 
 Taylor v. Yonkers, 26 W. Dig. 376.
 
 CHAPTER VII. 
 
 CONTRIBUTORY NEGLIGENCE. 
 
 1. Burden on plaintiff. 
 
 2. Rule in many States. 
 
 3. New York rule. 
 
 4. Circumstances. 
 
 5. Evidence necessary. 
 
 6. Wrongful act. 
 
 1. Burden on plaintiff. It seems to be the almost uni- 
 versally recognized rule in this State that in negligence 
 cases the proof of absence of contributory negligence is 
 essential to the plaintiffs recovery. 
 
 Riceman v. Havemeyer, 84 N. Y. 647. 
 
 Hale v. Smith, 78 N. Y. 480. 
 
 Lehman v. Brooklyn, 29 Barb. 234. 
 
 Delafield r. Union Ferry Co., 10 Bosw. 216. 
 
 Cordell v. N. Y. 0., &c. R. R. Co., 75 N. Y. 330. 
 
 Hart v. Hudson R. Br. Co., 80 N. Y. 622. 
 
 Glendening v. Sharp, 22 Hun, 78. 
 
 Kenney v. N. Y. & Manhattan Beach R. R. Co., 13 
 
 W. Dig. 61. 
 Halpin v. Third Ave. R. R. Co., 40 Super. 175. 
 McMahon v. N. Y. El. R. R. Co., 50 Super. 507. 
 Schindler v. N. Y., L. E. & W. R. R. Co., 1 N. Y. 
 
 St. R. 289. 
 Warner r. N. Y. C. R. R. Co., 44 N. Y. 465. 
 Hoag v. N. Y. C, &c. R. R. Co., 21 W. Dig. 506. 
 
 [205]
 
 206 Practice. 
 
 And the same rule applies in Maine, 
 
 Benson v. Titcomb, 72 Me. 31. 
 
 Merrill v. North Yarmouth, 3 Atl. R. 575. 
 
 and in Vermont, 
 
 Bovee v. Danville, 53 Vt. 183. 
 
 Michigan, 
 
 Mich. Cent. R. R. Co. v. Coleman, 28 Mich. 440. 
 
 and Massachusetts. 
 
 Mayo v. Boston, &c. R. R., 104 Mass. 137. 
 
 2. Rule in many States. A different rule seems to be 
 adopted in many States, and in the United States courts, 
 namely : that the burden of proving contributory negli- 
 gence is upon the party charging it ; and there can be no 
 nonsuit upon that ground unless the plaintiffs case dis- 
 closes such negligence. 
 
 Hobson v. New Mexico, &c. Ry. Co., (Arizona) 11 
 
 Pac. R. 545. 
 McDougall v. Cent. P. R. R.Co., 63 Cal. 431. 
 Sanders v, Reister, 1 Dakota Ter. 151. 
 Cincinnati, &c. R. R. Co. v. Batler, (Indiana) 2 
 
 No. East. Rep. 138. 
 Freeh v. Philadelphia, &c. R. R. Co., 39 Md. 574. 
 County Com'rs v. Burgess, (Md ) 30 Alb. L. J. 79. 
 Hocum v. Weitherick, 22 Minn. 152. 
 Buesching v. St. Louis Gaslight Co., 73 Mo. 219. 
 Lincoln v. Walker, (Nebraska) 30 Alb. L. J. 406. 
 Penn. Canal Co. v. Bentley, 66 Pa. St. 30. 
 Cleveland, &c. R. R. Co. v. Rowan, Id. 393. 
 Dallas, &c. Ry. Co. v. Spicker, 61 Tex. 427. 
 Hoyt v. Hudson, 41 Wis. 104. 
 R. R. Co. v. Gladmon, 15 Wall. 401.
 
 Contributory Negligence. 207 
 
 The same doctrine was held in New York, in 
 
 Robinson r. New York Central, &c. R. R. Co., 65 
 Rarb. 140. 
 
 Affirmed, 66 N. Y. 11 ; but without passing upon this 
 point, and in no other case. 
 
 (See Article, 20 Alb. L. J. 304, discussing the rule 
 in different States.) 
 
 3. The New York rule, as stated above, is modified in 
 its application, into a rule which involves a somewhat 
 metaphysical distinction, and is well stated in the head- 
 note to Button v. Hudson Kiver R. R. Co., 18 N. Y. 248. 
 
 "In an action for negligence, the burden is tipon tJu plaint- 
 iff to W ™ affirmatively that he is guiltless of any negligence 
 proximately contributing to the injury. Such negligence is not 
 to be presumed, and therefore direct evidence to disprove it is 
 not required from the plaintiff' in the first instance ; but where 
 there is conflicting testimony as to the facts, the preponderance 
 must be with the plaintiff, to enable him to recover." 
 
 In that case the court say : " It must not be understood 
 that it was incumbent on the plaintiff, in the first in- 
 stance, to give evidence for the direct and special object 
 of establishing the observance of due care by the intes- 
 tate ; it would be enough if the proof introduced of the 
 negligence of the defendants and the circumstances of the 
 injury, prima facie, established that the injury was occa- 
 sioned by the negligence of the defendants ; as such evi- 
 dence would exclude the idea of a want of due care by 
 the intestate aiding to the result. . . . The fact must 
 appear in same way, but in what particular mode, is
 
 208 Practice. 
 
 unimportant. The evidence of it may be direct and posi- 
 tive, or only circumstantial." 
 
 4. Circumstances. Other cases holding that the absence 
 of contributory negligence may be inferred from circum- 
 stances, are the following : 
 
 Nowell v. New York, 52 Super. 382. 
 Fitzgerald v. Binghamton, 40 Hun, 332. 
 Johnson v. H. R. E. R. Co., 20 N. Y. 65. 
 Smedis v. B. & E. B. R. R. Co., 23 Hun, 279 ; 88 
 
 N. Y. 13. 
 Moody v. Osgood, 54 N. Y. 488. 
 Morrison v. N.Y. C. & H. R. R. R. Co., 63 N.Y. 643. 
 Hart v. Hudson River Br.. Co., 84 N. Y. 56. 
 Jones v. N. Y. C, &c. R. R. Co., 10 Abb. N. C. 200; 
 
 aff. 28 Hun, 364; 92 N. Y. 628. 
 Schwandner v. Birge, 33 Hun, 186. 
 
 To the same effect in other States. 
 
 Mayo v. Boston, &e. R. R. Co., 104 Mass. 137. 
 Chicago, &c. R. R. Co. v. Clark, 108 111. 113. 
 Texas, &c. Ry. Co. v. Crowder, 63 Tex. 502. 
 New Jersey Exp. Co. v. Nichols, 33 N. J. L. 434. 
 
 Among the circumstances which have been held suffi- 
 cient to raise the inference of care on the part of the 
 plaintiff, may be mentioned the following : 
 
 (a) Character of defendant's negligence, which may 
 be such as prima facie to establish the whole issue. 
 
 Johnson v. H. R. R. R. Co., supra. 
 
 (b) Known indisposition of men needlessly to subject 
 themselves to danger. 
 
 Id. 
 
 Schwandner v. Birge, supra.
 
 Contributory Negligence. 209 
 
 (c) In case of injury causing death, there being no 
 witnesses of the injury, the habits of the deceased, as to 
 sobriety, prudence, &c. 
 
 Chicago, &c. R. R. Co. v. Clark, supra. 
 Contra, Chase v, Maine Cent. R. R. Co.. 77 Me. 62. 
 
 (d) The absence of all appearance of fault. 
 
 Mayo v. Boston, &c. R. R., supra. 
 
 (e) Person found dead at the foot of wall, above which 
 was a street unguarded ; last seen alone on street above. 
 
 Nowell v. New York, supra. 
 
 (f) Fact that plaintiff was injured in the night-time, 
 
 while engaged in the discharge of his duty as a brakeman 
 
 on defendants' train, by the breaking of a ladder attached 
 
 to his car. 
 
 Jones v. New York Central & H. R. R. R. Co., 
 supra. 
 
 5. There must, however, be some evidence as to the 
 conduct of the injured person. 
 
 Glendening v . Sharp, 22 Hun, 78. 
 
 And where circumstances point as much to contribu- 
 tory negligence as to its absence, or in neither direction, 
 there can be no recovery. 
 
 Kenney v. Manhattan B. R. R. Co., 13 W. Dig. 61. 
 Tolman v. Syracuse, &c. R. R. Co., 98 N. Y. 198. 
 McDermott v. Third Ave. R. R. Co., 26 W. Dig. 250. 
 
 6. For wrongful act. It may be added here, that where 
 
 14
 
 210 Practice. 
 
 the injury was caused by wrongful act rather than negli- 
 gence, the burden of proving contributory negligence is 
 on the defendant. 
 
 Clifford v. Dam, 81 N. T. 52. 
 McGuire v. Spence, 91 N. Y. 303.
 
 CHAPTER VIII. 
 
 DAMAGES. 
 
 A. Action by Person Injured. 
 
 1. Fact of injury. 
 
 2. Speculative consequences. 
 
 3. Measure, generally. 
 
 4. Compensatory only. 
 
 5. Prospective damages. 
 
 6. Direct pecuniary loss. 
 
 7. Evidence of loss. 
 
 8. Speculative damages. 
 
 9. Double damages. 
 
 10. Physical and mental suffering. 
 
 11. Disease contracted. 
 
 12. Ill health before injury. 
 
 13. Pecuniary condition. 
 
 14. Married woman. 
 
 B. Action by Husband or Parent. 
 
 1. Measure to husband. 
 
 2. Measure to parent. 
 
 C. Injuries Causing Death. 
 
 1. Introductory. 
 
 2. New York rule. 
 
 3. Pecuniary damage only. 
 
 4. Loss to beneficiaries only. 
 
 5. Actual and prospective. 
 
 6. Measure. 
 
 7. Elements and evidence. 
 
 8. Damages to parent. 
 
 9. Interest. 
 
 10. Summary. 
 
 The fact of injury is of course the chief requisite in 
 
 [211]
 
 212 Practice. 
 
 the line of proof ; its extent is important to be shown 
 only upon the question of damages. For convenience, 
 both fact and extent are considered under the general 
 subject of damages. Some classes of evidence which 
 have been held proper to lay before the jury, to enable 
 them to fix the amount of recovery, in case they find for 
 the plaintiff, will be given under the somewhat arbitrary 
 classification which follows : 
 
 A. Action by Person Injured. 
 
 1. Fact of injury. This may be proven by the direct 
 evidence of the person injured. 
 
 Also by others present, that the plaintiff made excla- 
 mations of pain at the time of the injury. 
 
 Hagenlocher v. C. I. & B. K. E. Co., 99 N. Y. 136. 
 Nichols v. Brooklyn City E. E. Co., 30 Hun, 437. 
 Elkhart v. Bitter, 66 Ind. 136. 
 
 Also by physicians who attended the injured person, 
 or otherwise made examination. 
 
 The physician may testify to the extent of the injury, 
 judging from his examination, including what the patient 
 said at the time, and the indications of suffering, 
 although there was no external evidence of injury. 
 
 Quaife v. Chicago, &c, By. Co., 48 Wis. 513. 
 
 Examination eight months after injury, held too remote. 
 Mosher v. BusseU, 26 W. Dig. 234. 
 
 Plaintiff may exhibit the injured member to the jury. 
 
 Jordan v. Bowen, 46 Super. 355. 
 Hiller v. Sharon Springs, 28 Hun, 344. 
 Indiana Car Co. v. Parker. 100 Ind. 181.
 
 D.1MA.GES. 213 
 
 But cannot be compelled to do so by order before trial 
 
 Roberts v. Ogdensburgh, &c. R. R. Co., 29 Hun, 154. 
 Newman v. Third Ave. R. R. Co., 19 W. Dig. 500. 
 
 An examination in court by a physician in behalf of 
 the defendant was held properly denied. 
 
 Archer v. Sixth Ave. R. R. Co., 52 Super. 378. 
 
 2. Speculative injury. Consequences of an injury from 
 negligence ichich are contingent, speculative, or merely possible, 
 are not proper to be considered in estimating the damages, and 
 may not be proved. 
 
 Strohm v. N. Y., &c. R. R. Co., 96 N. Y. 305. 
 
 Walrath v. Whittekind, 26 Kan. 482. 
 
 Tozer v. N. Y. C, &c. R. R. Co., 26 W. Dig. 72. 
 
 2. Measure of damages, generally. Damages for personal 
 injury include everything of ichich the plaintiff has been de- 
 prived as a direct and natural consequence of the injury. 
 
 Huizega v. Cutler, &c. Lumber Co., 51 Mich. 272. 
 
 4. Compensatory only. For mere negligence, punitive < h im- 
 ages cannot be recovered. Only compensatory damages can be 
 
 allowed. 
 
 Wilson v. Granby, 47 Conn. 59. 
 
 Burr v. Plymouth, 48 Conn. 460. 
 
 Chicago v. Langlass, 52 III. 256. 
 
 Chicago v. Kelly. 69 111. 475. 
 
 Louisville, <fcc. Ry. Co. v. Shanks, 94 Ind. 598. 
 
 Parsons v. Lindsay, 26 Kan. 426. 
 
 Wilson v. Wheeling, 19 W. Va. 323.
 
 214 Practice. 
 
 5. Prospective damages. The person injured can have but 
 one action for such injury, and in that action he may have pros- 
 pective damages. 
 
 Filer v. New York Central B. B. Co., 49 N. Y. 42. 
 
 Elkhart v. Bitter, 66 Ind. 136. 
 
 Weisenberg v. Appleton, 26 Wis. 56. 
 
 Staal v. Grand St., &c. R. B. Co., 36 Hun, 208. 
 
 Wardle v. New Orleans City R. R. Co. , 35 La. An. 
 
 202. 
 Secord v. St. Paul, &c. By. Co., 18 Fed. R. 221. 
 Scott v. Montgomery, 95 Pa. Sfc. 444. 
 Chicago, &c. R. R. Co. v. Avery, 10 111. Ap. 210. 
 Matteson v. New York Central R, R. Co., 62 Barb. 
 
 364, 35 N. Y. 487. 
 Aaron v. Second Ave. R. R. Co., 2 Daly, 127. 
 Houston, &c. Ry. Co. v Boehm, 57 Tex. 152. 
 Klein v. Jewett, 36 N. J. Eq. 474. 
 McLaughlin v. Corry, 77 Pa. St., 109. 
 Stafford v. Oskaloosa, 64 Iowa, 251. 
 
 The limit in respect to future damages is, that they 
 must be such as it is reasonably certain will inevitably 
 and necessarily result from the injury. 
 
 Filer v. N. Y. C. B. B. Co., supra. 
 Stafford v. Oskaloosa, supra. 
 Marvin v. Manhattan By. Co., 53 Super. 527. 
 
 For the purpose of estimating future damages, phy- 
 sicians may be sworn as to the probable, result of the 
 injury. 
 
 Wendell v. Troy, 39 Barb. 329; 4 Abb. Dec. 563. 
 
 Strohm r. N. Y., &c. B. B. Co., 96 N. Y. 305. 
 
 Jones v. Utica, &c. B. B. Co., 40 Hun, 349. 
 
 Griswold v. N.Y. Cent., &c. B. B. Co., 26 W. Dig. 358. 
 
 6. Direct pecuniary loss. This may include expenses at- 
 tending illness, such as physicians', druggists' and nurses' 
 bills ; t 1 ) also value of time lost. ( 2 )
 
 Damages. 215 
 
 (') Giblin r. Mclntyre, 2 Utah, 384. 
 
 Sheehan v. EJgar, 58 N. Y. 631. 
 
 Metcalf r. Baker, 57 N. Y. 662. 
 
 So. & No. Anna It. R. Co. r. McLendon, 63 Ala. 266. 
 
 Reed v. Chicago, &c. R. R. Co., 57 Iowa, 23. 
 
 Brignoli v. Chicago, &c. Ry. Co., 4 Daly, 182. 
 ( 2 ) Nones v. Northouso, 46 "Vt. 587. 
 
 Metcalf v. Baker, supra. 
 
 Drinkwater r. Dinsmore, 16 Hun, 250. 
 
 Rev'd on other grounds, 80 N. Y. 390. 
 
 But board cannot be allowed. 
 
 Graiber v. Derwin, 43 Cal. 495. 
 
 These may be both accrued and prospective. 
 
 Stall v. Grand St., &c. R. R. Co., 36 Hun, 208. 
 Scott v. Montgomery, 95 Pa. St. 444. 
 Houston, &c. Ry. Co. v. Boehm, 57 Tex. 152. 
 Drinkwater v. Dinsmore, supra. 
 Brignoli v. Chicago, &c. Ry. Co., supra. 
 Chicago, &c. R. R. Co. v. Avery, 10 111. Ap. 210. 
 McLaughlin v. Corry, 77 Pa. St. 109. 
 
 Upon the question of accrued expense, the jury 
 
 cannot speculate. Nothing can be allowed therefor, 
 
 unless the amount be shown or facts from which to 
 estimate it. 
 
 Thus of value of lost time, 
 
 Leeds v. Metropolitan Gas L. Co., 90 N. Y. 26. 
 
 and of medicines and attendance. 
 
 Reed v. Chicago, <tc. R. R. Co., 57 Iowa, 23. 
 Eckerd v. Chicago, etc. Ry. Co., (Iowa) 30 No. W. 
 R. 615. 
 
 It has been held, in New York and Illinois, that 
 the amount paid for medical attendance cannot be allowed
 
 216 Peactice. 
 
 without proof that the plaintiff paid it or became liable 
 
 therefor. 
 
 Drinkwater v. Dinsmore, 80 N. Y. 390. 
 Moody v. Osgood, 50 Barb. 626. 
 Joliet v. Henry, 11 111. Ap. 154. 
 Chicago v . Honey, 10 HI. Ap. 535. 
 
 But in several States the value of services of physi- 
 cians and nurses is held to be properly shown, though it 
 was gratuitous. 
 
 Klein v. Thompson, 19 Ohio St. 569. 
 
 Penn Co., &c. v. Marion, (Lid.) 3 No. East Rep. 874. 
 
 Varnham v. Council Bluffs, 52 Iowa, 698. 
 
 Damages may be given for future expenses, even if 
 there be no proof as to the past. 
 
 Staal v. Grand St., &c. R R. Co., 36 Hun, 208. 
 
 7. Evidence of loss. For the purpose of proving pecun- 
 iary loss, both past and future, the following evidence 
 has been held competent. 
 
 Inability to attend to business. 
 
 Indianapolis v. Gaston, 58 Ind. 224. 
 Walker v. Erie Ry. Co., 63 Barb. 260. 
 Brignoli v. Chicago, &c. Ry. Co., 4 Daly, 182. 
 
 That sole means of support was earnings as phy- 
 sician. 
 
 Stafford v. Oskaloosa, 64 Iowa, 251. 
 
 Past earnings and capacity to earn. 
 
 Ehrgott v. New York, 96 N. Y. 264. 
 Nash v. Sharpe, 19 Hun, 3G5. 
 Simonin v. N. Y., &c. R. R. Co., 36 Hun, 214. 
 Louisville, &c. Ry. Co. v. Frawley, (Ind.) 9 No. 
 E. R. 591. 
 
 Difference of earnings before and after injury. 
 
 Conner v. Pioneer, &c. Co., 29 Fed. R. 629.
 
 Damages. 217 
 
 8. Speculative damages. Prospective profits in busi 
 are not usually recoverable, being in II" \r nature speculative. 
 
 Phyfe v. Manhattan Ry. Co., 30 Hun, 377. 
 Marks v. L. I. R. R. Co., 25 W. Dig. 189. 
 
 And in such case past profits are incompetent to prove 
 
 them. 
 
 Masterton v. Mt. Vernon, 58 N. Y. 391. 
 
 Upon the same principle it has been held incompetent 
 to show that the plaintiff was in line of promotion, and 
 expected to receive greater wages. 
 
 Brown v. Chicago, &c. R. R. Co. , 64 Iowa, G52. 
 
 9. Double damages. One cannot recover for his own loss of 
 time and capacity to labor, and also what he had to pay en- 
 other to supply that loss of labor. 
 
 Blackman v. Gardiner Bridge, 75 Me. 214. 
 
 10. Physical and mental sufferings, both present and future, 
 are proper elements of damages. 
 
 Ransom v. N. Y. & E. R. R, Co., 15 N. Y. 415. 
 
 Curtis r. R. & Syr. R, R. Co., 18 N. Y. 684 
 
 Walker v. Erie Ry. Co., G3 Barb. 260. 
 
 So. & No. AnnaR. R. Co. r. McLendon, 23 Ala 266. 
 
 Drinkwater v. Dinsmore, 16 Hun, 250. 
 
 De Forest v. Utica, 69 N. Y. 614. 
 
 Giblin v. Mclntyre, 2 Utah, 384. 
 
 Porter v. Hannibal, &o. R. R. Co., 71 Mo. 6& 
 
 Hamilton v. Third Ave. R. R. Co., 40 Super. 376.
 
 218 Practice. 
 
 To which may be added " consequent privation and in- 
 convenience." 
 
 Scott v. Montgomery, 95 Pa. St. 444. 
 
 McLaughlin v. Corry, 77 Id. 109. 
 
 Mental suffering, however, does not constitute a dis- 
 tinct item of damages. 
 
 Giblin v. Mclntyre, supra. 
 Salina v. Trosper, 27 Kan. 544. 
 
 The pain and suffering resulting from the plaintiff's 
 want of care in seeking recovery cannot be considered. 
 
 Gilman v. Haley, 7 111. Ap. 349. 
 
 Nor his anxiety for the safety of others. 
 
 Keyes v. Minneapolis Ey. Co. (Minn.), 30 N. W. E. 
 
 888. 
 
 11. Disease contracted. Injury to health is a proper subject 
 
 of inquiry. 
 
 Beckwith v. New York Central E. E. Co., 64 Barb. 
 
 299. 
 
 And if disease resulted from the injury, damages may be 
 
 allow T ed for it. 
 
 Houston, &c. Ey. Co. v. Leslie, 57 Tex. 83. 
 
 Stewart v. Eipon, 38 Wis. 584. 
 
 Baltimore, &c. Ey. Co. v. Kemp, (Md.) 30 Alb. L. 
 
 J. 90. 
 Ehrgott v. New York, 96 N. Y. 264. 
 Oliver v. La Valle, 36 Wis. 592. 
 
 12. Ill-health before injury. If by reason of a delicate 
 condition of health the consequences of a negligent injury are 
 more serious still, for those consequences the defendant is liable, 
 although they were aggravated by the imperfect bodily con- 
 dition. 
 
 Tice v. Munn, 94 N. Y. 621. 
 
 Louisville, &c. Ey. Co. v. Jones, (Ind.) 9 No. East. 
 E. 476.
 
 Damages. 210 
 
 13. Pecuniary condition. Evidence of the wealth or 
 poverty of the plaintiff,(') or his family/ 2 ) or the de- 
 fendant^ 3 ) is incompetent in several States. 
 
 (i) Shea v. Potrero, &c. R. R. Co., 44 Cal. 414. 
 
 Eagle Packet Co. v. Defries, 94 HI. 598. 
 
 La Salle r. Thorndike, 7 HI. Ap. 282. 
 
 Missouri Pac. R. R. Co. v. Lyde, 57 Tex. 505. 
 (-) Chicago r. O'Brennan, G5 HI. 1G0. 
 
 Louisville, &c. Co. v. Gower, (Tenn) 3 So. W. R. 
 824. 
 (3) Chicago City Ry. Co. v. Henry, G2 HI. 142. 
 
 14. Married woman. A toifc can recover only for such loss 
 of services as she ha? sustained herself and toivards herself. 
 
 Minick v. Troy, 19 Hun, 253; 83 N. Y. 514. 
 
 She may, however, testify that she did all the work 
 for her husband and large family. 
 
 Joliet r. Conway, (HI.) 10 No. East. R. 223. 
 
 She may recover for inability to care for her property 
 [her husband being a cripple]. 
 
 Fitzsimons v. Rome, 21 W. Dig. 343. 
 
 Formerly it was held that a married woman could not 
 recover for expenses of medical attendance, unless she 
 had charged her separate estate with its payment. 
 
 Moody v. Osgood, 50 Barb. 628. 
 
 B. Action by Husband or Parent. 
 
 1. Measure of damages to husband. The r.icasure of dam- 
 ages to a husband whose wife has been injured by negKgena , is
 
 220 Pkactice. 
 
 the value of her services and his reasonable expenses in procur- 
 ing necessary treatment and care for her. 
 
 Meigs v. Buffalo, 23 W. Dig. 497. 
 
 The husband may recover for the necessary labor 
 substituted for the ordinary service of his wife, and for 
 his own services in attending her. 
 
 Lindsey v. Danville, 46 Yt. 144. 
 
 And for loss of her society. 
 
 Jones v. Utica & Black Biver B. B. Co., 40 Hun, 349. 
 
 This may be both present and prospective ; and a 
 physician may testify to the natural and probable dura- 
 tion of the injury. 
 
 Jones v. U. & B. B. B. B. Co., supra. 
 
 2. Measure of damages to parent. This is the same as 
 in the last case, except that in estimating prospective 
 damages the question for the jury to determine is how far 
 the injuries are permanent as affecting the ability of the 
 child to work until its majority. 
 
 Hussey v. Byan, (Md.) 4 East. B. 462. 
 
 C. Foe Injury Causing Death. 
 
 1. Introductory. The cause of action, where one exists, 
 where injuries from negligence are the cause of death, 
 being, as stated in Part I. chapter II., wholly statutory, 
 and the law and practice thereon being different in differ- 
 ent States, it is difficult to formulate any general rules. 
 
 The New York statutes are given at pages 14 to 18, 
 and attention will be mainly confined to the rules and 
 decisions under those statutes.
 
 Damages. 221 
 
 2. New York rule. The New York rule gives the cause 
 of action for the " benefit of the husband or wife and next 
 of kin " ; and provides that the damages awarded shall 
 be, within the limit established, "a fair and just compen- 
 sation for the pecuniary injuries resulting from the deced- 
 ent's death to the person or persons for whose benefit 
 the action is brought." 
 
 3. Pecuniary damage. The first principle to be observed 
 
 under this and similar statutes is that: — The recovery 
 
 must be confined to the pecuniary loss sustained by the death of 
 
 the intestate ; and damages can be only awarded on proof of 
 
 such loss. 
 
 Mitchell r. New York Central, &c. R. R. Co., 2 
 Hun, 535 ; 64 N. Y. 655. 
 
 But proof of slight loss will warrant submission to 
 
 the jury. 
 
 Cornwall v. Mills, 44 N. Y. Super. 45. 
 
 The jury must, however, judge, not guess. 
 
 Houghkirk v. Delaware & Hudson C, Co., 92 N.Y. 
 219. 
 
 There can be no allowance for grief or bereavement 
 of the survivors. 
 
 Lehman v. Brooklyn, 29 Barb. 234. 
 
 Tflley p. Hudson River R. R, Co., 24 N. Y. 471. 
 
 Etkerington v. P. P. & C. I. R. R. Co., 88 N. T. 
 
 641. 
 Galveston v. Barbour, 62 Tex. 172. 
 Mansfield, &c. Co. v. McEnery, 91 Pa. St. 185. 
 Huntingdon, fro. R. R. Co. v. Decker, 84 Id. 419. 
 Kansas Pacific Ry. Co. v. Cutter, 19 Kan. 83.
 
 222 Practice. 
 
 Nashville, &c, B. E. Co. v, Stevens, (Tenn.) 9 Heisk. 
 
 12. 
 Contra. Baltimore, &c. E. E. Co. v. Noell, (Virginia) 32 
 
 Gratt. 394. 
 Owen v. Brockschmidt, 54 Mo. 285. 
 
 Nor for loss of society and companionship. 
 
 Lehman v. Brooklyn, supra. 
 
 Etherington v. P. P., &c. E. E. Co , svpra. 
 
 Howard Co. Comrs. v. Legg, 93 Ind. 523. 
 
 4. Loss to beneficiaries only. Damages can be awarded 
 only for the loss to the persons provided for in the statute. 
 
 There can be none for the personal wrong or suffer- 
 ing of the person killed. 
 
 Tilley v. Hudson Eiver E. E. Co., 24 N. Y. 471. 
 Etherington v. P. P., &c. E, E Co., 88 N. Y. 641. 
 Holton v. Daly, 106 El. 131. 
 
 Or for his expense for medical treatment. 
 Holton v. Daly, supra. 
 
 Unless a beneficiary is chargeable with it, in which 
 case it is a proper item. 
 
 Murphy v. N. Y. C, &o. E. E. Co., 88 K Y. 445. 
 Pennsylvania E. E. Co. v. Bantom, 54 Pa. St. 495. 
 Boeder v. Ormsby, 22 How. Pr. 270. 
 
 5. Actual and prospective. Both special or actual and 
 prospective general damages may be allowed. 
 
 Houghkirk v. D. & H. Canal Co., 92 N. Y. 219. 
 Gumb v. Twenty-third St. E. E. Co., 1 N, Y. St. 
 E. 715.
 
 Damages. 223 
 
 The beneficiary will not be limited to nominal dam- 
 ages, though there be no positive evidence of actual 
 pecuniary loss. 
 
 Dickens v. New York Central R. R. Co., 1 Abb. 
 
 Dec. 504. 
 Ryall v. Kennedy, 40 Super. 347. 
 Kennedy v. Ryall, G7 N. Y. 379. 
 
 Thus in action for killing a }'oung child. 
 
 Prendegast v. New York Central, &c. R. R. Co., 58 
 
 N. Y. 652. 
 Gorkam v. New York Central, &c. R. R. Co., 23 
 
 Hun, 449. 
 
 But when special damages are sought, their character 
 and amount should be proven. 
 
 Houghkirk v. D. & H. Canal Co., supra. 
 
 6. Measure of general damages. The basis of general dam- 
 ages in case of death by negligence is the reasonable expectation 
 of pecuniary advantage for tlw continuance of the life. 
 
 Thomas v. U. & B. R. R. R. Co., Civ. Pro. R. 
 
 353 ; 34 Hun, 626 ; 98 N. Y. 649. 
 Burton v. Wilmington, &c. R. R. Co., 82 N. C. 504. 
 Mansfield Coal, &c. Co. v. McEnery, 91 Pa. St. 185. 
 Collins v. Davidson, 19 Fed. R. 83. 
 Nashville. &c. R. R.Co. p. Stevens, 9 Heisk. (Term.) 
 
 12. 
 Rafferty v. Buckman, 46 Iowa, 195. 
 Carpenter v. Buffalo, &c. R, R. Co., 38 Hun, 116. 
 
 7. Elements and evidence of same. Pecuniary injuries
 
 224 Practice. 
 
 may be suck as arise from the loss of personal care, 
 intellectual culture or moral training. 
 
 Mclntyre v. N. Y. C., &c. E. E. Co., 37 N. Y. 287. 
 Tilley v. H. E. E. E. Co., 24 N. Y. 471. 
 
 The probable duration of life is a question to be con- 
 sidered. 
 
 Scheffler v. Minneapolis, &c. Ey. Co., 32 Minn. 518. 
 
 This may be shown by the Northampton tables. 
 
 Sauter v. New York Central, &c. E. E. Co., 66 N 
 Y. 50. 
 
 It is proper to consider the age, sex,^) character, 
 qualities, capacity and condition ;( 2 ) business, property 
 and pecuniary prospects ;( 3 ) age, habits, industry, means, 
 business ;( 4 ) age, ability, disposition to work, habits of 
 living and expenditure ;( 5 ) general character for industry 
 and kindness (but not specific acts); ( 6 ) usual earnings ( 7 ) 
 of the decedent. 
 
 (i) Ihl v. Forty-second St. E. E. Co., 47 N. Y. 317. 
 
 (2) Lockwood v. N. Y, L. E., &c. E. E. Co., 98 N. Y. 
 
 523. 
 
 (3) Kansas Pac. Ey. Co. v. Cutter, 19 Kan. 83. 
 Huntingdon, &c. E. E. Co. v. Decker, 84 Pa. St. 
 
 419. 
 March v. Walker, 48 Tex. 372. 
 
 (4) Burton v. Wilmington, &c. E. E. Co., 82 N. C. 504. 
 
 (5) Mansfield Coal, &c. Co. v. McEnery, 91 Pa. St. 185. 
 
 (6) Quinn v. Power, 29 Hun, 183. 
 Eeversed on other grounds, 87 N. Y. 535. 
 
 (7) Mclntyre v. N. Y. C. E. E., &c. Co., 37 N. Y. 287. 
 
 It is also proper to show the age, sex, circumstances 
 and condition of the next of kin.
 
 Damages. 225 
 
 Lockwood >: New York, <fcc. R. R. Co. , 98 N. Y. 
 
 523. 
 Ihl v. Forty-second St. R. R. Co., 47 N. Y. 319. 
 Carpenter v. Buffalo, &c. R. R. Co., 38 Hun, 116. 
 
 In Indiana (') and Illinois ( : ) it is held, that the pecu- 
 niary condition of those who would benefit by the recov- 
 ery cannot be shown. 
 
 (!) Mayhew v. Burns, 2 No. East. Rep. 793. 
 
 Indianapolis, &c. Ry. Co. v. Pitzer, 6 No. East. 
 Rep. 310. 
 (2) Chicago v. McCulloch, 10 111. Ap. 459. 
 
 Chicago, &c. Ry. Co. v. Moranda, 93 111. 302. 
 
 Chicago, &c. R. R. Co. v. Henry, 7 HI. Ap. 322. 
 
 The fact cannot be considered that the plaintiff as 
 next of kin of the decedent is entitled to her property (') 
 or life-insurance. ( : ) 
 
 (i) Terry v. Jewett, 78 N. Y. 338. 
 
 Malonee v. N. Y. C, &c. R. R. Co., 20 W. Dig. 252. 
 
 Chicago, &c. Ry. Co. v. Bayfield, 37 Mich. 205. 
 (2) Kellogg v. N. Y. C, &c. R. R. Co., 79 N. Y. 73. 
 
 8. Damages to parent. Where the father sites as adminis- 
 trator and is the sole beneficiary, he may recover all thz 
 damages which he would have been entitled to had his son sur- 
 vived the injury. 
 
 McGovern v. N. Y. C, &c. R. R. Co., 67 N. Y. 417. 
 Stuebing v. Marshall, 2 Civ. Pro. 77. 
 
 This includes cost of nursing and medical attendance, 
 and funeral expenses. 
 
 Rains v. St. Louis, &c. Ry. Co., 71 Mo. 164. 
 15
 
 226 Pbactice. 
 
 Also loss of services during minority. 
 
 McGovern v. N. Y. C, &c. Co., supra. 
 Gill v. E. & P. R B. Co., 37 Hun, 107. 
 Bains v. St. Louis, &c. By. Co., 71 Mo. 164 
 
 From which must be deducted the probable cost of 
 
 maintenance. 
 
 Benton v. Chicago, &c. B. B. Co., 55 Iowa, 496. 
 St. Louis, &c. By. Co. v. Freeman, 36 Ark. 41. 
 
 But loss of possible counsel and advice cannot be 
 allowed. 
 
 Gill v. B. & P. B. E. Co., supra. 
 
 The measure of value of a child's services is such as 
 is ordinary with children in the same condition and 
 station of life, without regard to any peculiar value the 
 plaintiff might attach to the child's services. 
 
 St. Louis, &c. By. Co. v. Freeman, supra. 
 
 The recovery in such case is not, however, limited to 
 loss of services of the child during its minority; the 
 action would still lie though the child were of age. 
 
 Birkett v. Knickerbocker Ice Co., 25 W. Dig 46. 
 Lockwood v. N. Y., &c. B. B. Co., supra. 
 
 Prospective damages for loss of services of a child 
 cannot be recovered unless specially alleged. 
 
 Gilligan v. N.Y. & Harlem B. B. Co., 1 E. D. Sm. 453. 
 9. Interest. In 1870 it was for the first time enacted in
 
 Damages. 227 
 
 New York that damages in such a case should draw in- 
 terest from the time of death, the interest to be "added 
 to the verdict and inserted in the entry of judg uent." 
 
 Laws 1870, chap. 78. 
 
 Prior to that enactment it had been held, that while 
 the jury might take into account the time that had 
 elapsed as affecting the amount of damages, yet they 
 could not agree upon a certain sum as damages, and add 
 to it interest thereon from the time of death. 
 
 Cook r. New York Central, &c. R. R. Co., 10 Hun, 
 426. 
 
 And the Court of Appeals hold that the position of 
 the jury is the same under the Act of 1870 ; and that 
 where the jury had thus included interest in their ver- 
 dict the clerk was still bound to add interest upon the 
 entry of judgment. 
 
 Manning v. Pt. Henry Iron Co., 91 N. Y. 634.. 
 
 It has been held that the rate of interest in a given 
 case is regulated by the statute in force when the verdict 
 was rendered. 
 
 Salter p. Utioa, &c. R. R. Co., 86 N. Y. 401. 
 (Overruling Erwin r. Neversink, <fec. Co., 23 Hun, 
 578.) 
 
 10. Summary. The whole subject of measure of damages 
 in case death results from an injury caused by negligence, 
 is excellently summed up in the opinion in Carpenter v. 
 Buffalo, etc. E. K. Co., 38 Hun, 116, from which the fol- 
 lowing is quoted :
 
 228 Practice. 
 
 " The estimate of them does not necessarily depend 
 upon the pecuniary condition of the next of kin as dis- 
 tinguished from the loss suffered, nor are they dependent 
 upon a legal duty or obligation of the deceased during 
 the time of his life or in the future, if he had continued 
 to live. 
 
 " While the injury must be pecuniary merely, and the 
 damages ascertained from the evidence, their sources 
 may not be in the loss, impairment or destruction of any 
 established legal right, but in the deprivation of what 
 reasonably may be, or may have been, expected by 
 those for whose benefit the recovery is had, from the con- 
 tinuance of the life of the deceased. Nor are they con- 
 fined to the present loss or injury, but may include such 
 as the jury may upon the evidence believe and find will 
 in the future result from the death as the proximate 
 cause of it. The prospective injuries may be in the loss 
 of aid, care and attention, whether by services and money, 
 or either, and by advice, direction and protection, or 
 either, in business, whether for purposes of accumulation 
 or preservation of the estate of the next of kin. In fact, 
 ' the statute has set no bounds to the sources of those 
 pecuniary injuries.' 
 
 " There may be difficulty in finding support for the 
 estimates made, in any well-defined rule of reasoning or 
 in the logic of the facts presented by the evidence, but 
 that is usually for the jury to demonstrate by their 
 verdict only, in finding which they are required to keep 
 within the limit, in respect to amount, prescribed by the 
 statute. 
 
 " These damages are found in the natural and rational 
 consequences which in the judgment of the jury have 
 resulted, and may, and therefore will, result to the next
 
 Damages. 229 
 
 of kin, when such alone are the sufferers of those named 
 in the statute as the beneficiaries of the recovery. 
 
 ' ' They are not susceptible of direct proof, and no 
 evidence of actual injury is necessary to support an action, 
 other than such as may show the relation and situation 
 of those who may be entitled to the fruits of the remedy. 
 The amount of recovery is dependent much on the ability 
 of the deceased in his lifetime, or that which he might, if 
 living, possess in future ; hence his mental and physical 
 qualities are properly matters for consideration, as well 
 as his particular relations to those for whose benefit relief 
 is sought. And out of the uncertainty of the pecuniary 
 advantages which his life might have afforded to them, 
 the jury are to find certainty to a reasonable extent in 
 the evidence in support of their judgment of the pecuni- 
 ary injury sustained."
 
 CHAPTER IX. 
 
 THE DEFENDANT'S CASE. 
 
 1. Generally. 
 
 2. Absence of negligence. 
 
 3. Absence of notice, 
 
 4. Act of plaintiff. 
 
 5. Medical treatment. 
 
 6. Predisposition to disease. 
 
 7. Damages. 
 
 1, Generally. The defendant may, of course, rebut all 
 the facts which the plaintiff attempts to establish. Thus, 
 it may offer evidence to disprove the facts of incorpora- 
 tion and duty to repair (though an action is hardly 
 presumable where these elements are not beyond dis- 
 pute), and the fact that the place of the accident was 
 upon one of its streets ; may dispute the fact and amount 
 of injury ; may deny the existence of the defect or ob- 
 struction ; may deny that it had notice or was negligent ; 
 may attempt to prove contributory negligence of the 
 plaintiff; may offer evidence to reduce the amount of 
 damages. It is only purposed to notice some decisions 
 upon what may and what may not prevent a recovery by 
 the plaintiff. 
 
 2. Evidence to rebut negligence, (a) A city may prove 
 [230]
 
 The Defendant's Case. 231 
 
 that a guard placed at an excavation was removed 
 by a stranger. 
 
 Sevestre r. New York, 47 Super. 341. 
 Parker v. Cohoes, 10 Hun, 531; 74 N. Y. 610. 
 Doherty v. Waltham, 4 Gray, 596. 
 Mullen v. Rutland, 55 Vt. 77. 
 Klatt r. Milwaukee, 53 Wis. 196. 
 
 (b) It may also show the efforts it has made to keep 
 the streets safe (') and the limitation of its power ; and to 
 that end may show the extent of its streets, the amount 
 of travel, the number of similar dangers, and its facilities 
 for removing obstructions. ( 2 ) 
 
 (i) Tinkham v. New York, N. Y. Daily Reg., Oct. 22, 
 
 1883. 
 (2) Reed v. New York, 31 Hun, 311. 
 
 (c) The absence of necessary funds and of legal means 
 to procure them will excuse the neglect, but must be 
 shown as a defense. 
 
 Hines v. Lockport, 50 N. Y. 236. 
 Weed v. Ballston, 76 N. Y. 329. 
 
 A city cannot raise the question that it is already 
 indebted to an amount exceeding the constitutional lim- 
 itation. 
 
 Bloomington v. Perdue, 99 HI. 329. 
 
 (d) It cannot excuse its negligence by showing that 
 there were similar (') or worse ( 2 ) places in the neighbor- 
 hood, 
 
 (i) Schoonmaker v. Wilbrahani, 110 Mass. 134. 
 
 Bauer v. Indianapolis, 99 Ind. 56. 
 
 Temperance Hall As'nr. Giles, 33 N. J. L. 260. 
 (2) Hyatt v. Rondout, 44 Barb. 385; 41 N. Y. 619.
 
 232 Practice. 
 
 or that others had passed uninjured. 
 Same cases. 
 
 (e) It cannot defend by showing that the defect 
 existed at the time of incorporation, or the omission to 
 make ordinances or by-laws in reference to repairing 
 
 Nelson v. Cauisteo, 100 N. T. 89. 
 
 (f) Legislative authority to make an excavation in a 
 street does not authorize or excuse negligence in mak- 
 ing it. 
 
 Steivermann v. White, 48 N. Y. Super. 523. 
 
 (g) The fact that a city has employed competent 
 officers, does not excuse their negligence. 
 
 New York v. .Furze, 3 Hill, 612. 
 
 (h) Nor can it excuse itself by laying the blame on an 
 incompetent officer of its own selection. 
 
 Rochester, &c. Co. v. Bochester, 3 N. Y. 463. 
 
 (i) Nor by the fact that its officers believed the street 
 Goodfellow v. New York, 100 N. Y. 15. 
 
 (j) Nor by instructing its subordinates to ascertain 
 the facts and report. 
 Id. 
 
 (k) It cannot excuse itself by the fact that it has 
 entered into a contract to repair the street. 
 
 Jacksonville v. Drew, 19 Fla. 106.
 
 The Defendant's Case. 233 
 
 3. Notice. It is proper to show that those constantly 
 using a street failed to notice the obstruction, as tending 
 to the presumption that the municipal authorities had 
 no notice. 
 
 Broburg v. Des Moines, G3 Iowa, 523. 
 
 4. Act of plaintiff. 
 
 (a) As tending to show contributory negligence, it is 
 proper to show that numerous persons passed on the 
 same night without difficulty or danger. 
 
 Fairbury v. Rogers, 2 111. App. 96. 
 
 (b) The ulterior purpose of the plaintiff in crossing a 
 
 particular bridge, does not affect his right to have it 
 
 safe. 
 
 Strong v. Stevens Point, 62 Wis. 255. 
 
 (c) Nor is he barred because he was injured while 
 doing an unlawful act, — as travelling on Sunday. 
 
 Platz v. Cohoes, 89 N. Y. 219. 
 Carroll v. S. I. K R. Co., 58 N. Y. 126. 
 Sutton v. Wauwatosa, 29 Wis. 21. 
 Opsahl v. Judd, (Minn.) 27 Alb. L. J. 277. 
 
 5. Medical treatment. Unskillful treatment by physi- 
 cians does not preclude from damages. 
 
 Lyons v. Erie Ry. Co., 57 N. Y. 489. 
 Tuttle v. Farmington, 58 N. H. 13. 
 Pullman, &o. Co. v. Blukm, 109 111. 20.
 
 234 Practice. 
 
 6. Predisposition to disease does not prevent a re- 
 covery. 
 
 McNaniara v. Clinton ville, 62 Wis. 207. 
 Baltimore City By. Co. v. Keefe, (Md.) 30 Alb. 
 L. J. 90. 
 
 7. Damages. Undoubtedly, however, evidence of both 
 the last two facts would be competent upon the question 
 of damages. 
 
 So also the following : 
 
 (a) When the plaintiff claims to have been disabled 
 from practicing as a physician, and claims damages 
 therefor, held, that the defendant might show that this 
 practice was unlawful ; that he had no professional repu- 
 tation. 
 
 Jaques v. Bridgeport Horse B. B. Co., 41 Conn. 61. 
 
 (b) The defendant claiming upon a second trial that 
 Bright's disease was caused by falling on a sidewalk, 
 held, competent to show that no such claim had been 
 made before. 
 
 Fieeport v. Isbell, 93 HI. 381. 
 
 (c) Proof of loss of wages may be rebutted by show- 
 ing that wages were really paid. 
 
 Drinkwater v. Dinsmore, 80 N. Y. 390.
 
 CHAPTER X. 
 
 QUESTIONS FOR COURT AND FOR JURY. 
 
 1. Introductory. 
 
 2. General rule. 
 
 3. Illustrations. 
 
 4. Contributory negligence ; rule. 
 
 5. Contributory negligence for jury ; cases. 
 
 6. Contributory negligence ; when question for court. 
 
 7. Excessive damages. 
 
 1. Introductory. It has sometimes been said that the 
 question of negligence in a particular case is one of 
 mixed law and fact. 
 
 Filer v. New York Central R. R. Co., 49 N. Y. 47. 
 Greenleaf v. Illinois, &o. R. R. Co., 29 Iowa, 14. 
 
 Others pronounce it one of fact only. 
 
 Thurber v. Harlem Bridge, &c. R. R. Co., 60 N. Y. 
 326. 
 
 The difference is one of expression ; the courts in the 
 former cases meaning merely, as they say, that " it is the 
 duty of the court to submit the same to the jury, with 
 proper instructions as to the law." 
 
 The following seems to be the generally recognized 
 
 general 
 
 [2351
 
 236 Pkactice. 
 
 2. Rule. Where the evidence of negligence is undisputed or 
 irresistible, it is for the court to decide ; but where facts or in- 
 ferences are in any way doubtful, the question of negligence is 
 for the jury. 
 
 Cases cited under 1, supra; also, 
 
 Gagg v. Vetter, 41 Ind. 228. 
 
 Delaney v. Milwaukee, &o. R. R. Co., 33 Wis. 67. 
 
 O'Neill v. Chicago, &c. Ry. Co., 1 McCrary C. Ct. 
 
 505. 
 Hunt v. Salem, 121 Mass. 294. 
 Payne v. Troy & Boston R. R. Co., 83 N. T. 572. 
 
 The practical application of the above rule is sug- 
 gested in the following : 
 
 Negligence is usually a question of fact. And espe- 
 cially so whenever men of ordinary prudence and discre- 
 tion might differ as to the character of the act under the 
 circumstances of the case. 
 
 Hayes v. Miller, 70 N. Y. at p. 116. 
 
 Thurber v. Harlem Br., &c. Ry. Co. , 60 N. Y. at p. 
 
 331. 
 Teipel v. Hilsendegen, 44 Mich. 461. 
 
 3. Illustrations. Each of the following questions have 
 been held to be within the province of the jury : 
 
 (a) Whether a city is liable for injuries caused by the 
 formation of ice around a pump and leader. 
 
 Allison v. Middletown, 101 N. Y. 667. 
 
 (b) Whether a sidewalk is properly constructed. 
 
 Sullivan v. Oshkosh, 55 Wis. 558.
 
 Questions for Court and for Jury. 237 
 
 (c) Whether a slight inequality, obstruction or depres- 
 sion is a dangerous defect. 
 
 Goodfel ow v. New York, 100 N. Y. 15. 
 
 Glantz v. Ho. Bend, (lnd.) 6 No. East. Rep. 632. 
 
 (d) Whether, after a snowfall, proper diligence is 
 observed in making walks safe. 
 
 Providence r. Clapp, 17 How. (U. S.) 161. 
 
 (e) Whether a piece of gas apparatus fixed in a side- 
 walk so as to trip persons, is a defect for which the city 
 
 is liable. 
 
 Loan v. Boston, 106 Mass. 450. 
 
 (f) Whether a city is responsible for a hole beside 
 the sidewalk. 
 
 Phillips v. Fishkill, 26 W. Dig. 103. 
 
 (g) Or for a secret defect in an awning. 
 
 Hume v. New York, 47 N. Y. 639. 
 
 4. Contributory negligence ; rule. To justify a non-suit 
 on the ground of contributory negligence, the undisputed fads 
 must shoiv the omission or commission of some act which the 
 law adjudges negligent ; the negligence must appear so clearly 
 that no construction of the evidence or inference drawn from 
 the facts will warrant a contrary conclusion. 
 
 Stackus r. N. Y. C, &c. R. R. Co.. 79 N. Y. 464. 
 
 Moody r. Osgood, 54 N. Y. 488. 
 
 Borst v. L. S. & M. S. Ry. Co., 4 Hun, 346 ; 66 N. 
 
 Y. 639. 
 Munroe v. Third Ave. R. R. Co., 50 Super. 114. 
 Spaulding v. Jarvis, 32 Hun, 621.
 
 238 Practice. 
 
 Cook v. New York Central B. B. Co., 1 Abb. Dec. 
 
 432. 
 Osage City v. Brown, 27 Kan. 74. 
 Williams v. Syracuse Iron Works, 31 Hun, 392. 
 Pendril v. Second Ave. B. B. Co., 34 Super. 481. 
 Dickens v. New York Central B. B. Co., 1 Abb. 
 
 Dec. 504. 
 Budolphy v. Fuchs, 44 How. Pr. 155. 
 Millard v. Pinard, 41 Vt. 34. 
 Pennsylvania B. B. Co. v. Bighter, 42 N. J. L. 180, 
 
 5. Contributory negligence, questioner jury ; cases. The 
 cases in which the question of contributory negligence 
 has been decided to be for the jury to determine, are 
 very numerous. Only a few will be mentioned, in which 
 municipal corporations were parties. 
 
 Diveny v. Elmira, 51 N. Y. 506. 
 Todd v. Troy, 61 N. Y. 506. 
 Niven v. Bochester, 76 N. Y. 619. 
 Sewell v. Cohoes, 75 N. Y. 45. 
 Gillespie v. Newburgh, 54 N. Y. 468. 
 Buland v. South Newmarket, 59 N. H. 291. 
 Fassett v. Boxbury, 55 Vt. 552. 
 Shook v. Cohoes, 23 W. Dig. 4. 
 
 6. "When question of law. (a) Where it is manifest 
 that the injury would not have occurred but for the 
 plaintiff's carelessness, a non-suit is proper. 
 
 Davenport v. Brooklyn City B. B. Co., 32 Alb. L. 
 J. 516. 
 
 (b) So, also, if there be no evidence of the acts of the 
 
 person injured. 
 
 Wood v. Andes, 11 Hun, 543. 
 Bowen v. Borne, 23 W. Dig. 406.
 
 Questions for Court and for Jury. 
 
 239 
 
 This, however, is subject to the rule that such evi- 
 dence may be circumstantial (see page 207, &c.). 
 
 Excessive damages. The question of damages is so far 
 within the province of the jury, that it has been held 
 that a verdict will not be set aside as excessive unless it 
 manifestly appears to be the result of passion, partiality, 
 prejudice or corruption ; although it appear to the court 
 much too large. 
 
 Minick v. Troy, 19 Hun, 253; 83 N. Y. 514. 
 
 It may be noticed here that the New York Court of 
 Appeals holds that it has no jurisdiction to reverse a 
 judgment in a negligence case on the ground of excessive 
 
 damages. 
 
 Gale v. New York Central, &c. R. R. Co., 76 N. Y. 
 
 594.
 
 FORM S. 
 
 No. 1. 
 
 Statement of Claim by Person Injured. 
 
 To , Esq., Comptroller, 
 
 [or, To The Common Council j of the City of : 
 
 Please take notice, that I, the undersigned, have and 
 do hereby present a claim against the City of for 
 
 the sum of dollars. 
 
 That the facts and circumstances out of which said 
 claim arises are as follows : 
 
 That on the evening of , 188 , I was 
 
 carefully passing along the sidewalk on the south side 
 of street, in the City of , when I fell and 
 
 was greatly injured by reason of the icy condition of the 
 sidewalk, forming an obstruction thereon. 
 
 That the place where I fell is between and 
 
 streets, and opposite the property known 
 as the premises ; and that, as I am informed 
 
 and believe, the said sidewalk had been icy and obstructed 
 at that point for a long time theretofore, and such con- 
 dition was caused or suffered by the negligent conduct of 
 the City of and its officers in the care of its 
 
 streets and sidewalks. 
 
 That by reason of said fall I have sufiered great 
 injuries : that I fractured one or both the bones of my 
 16 [2411
 
 24:2 Forms. 
 
 right leg below tlie knee ; that I have suffered great pain 
 therefrom and have been and am unable to use the said leg 
 or to walk, and believe such disability will be in some 
 degree permanent. 
 
 That said injury happened without fault or negligence 
 on my part. 
 
 That I have suffered, and am likely to suffer great loss 
 and damage through the negligence of said city and its 
 officers as aforesaid, and have been put to great incon- 
 venience and expense, and by reason of the premises 
 claim from the City the said sum of dollars. 
 
 Dated 
 
 [Signature of Claimant.'] 
 
 [Verification, where necessary, in ordinary form as for 
 pleading.'] 
 
 No. 2. 
 
 Statement of Claim by General G-nardian 
 of Infant. 
 
 To , Esq., Comptroller of the 
 
 City of : 
 
 Take notice, that the undersigned, as general guardian 
 .of A. B. an infant under the age of twenty-one years, to 
 wit : of the age of years, on the day 
 
 of , 188 , and in behalf of said infant, has a claim 
 
 against the City of , not arising on contract, 
 
 but for injuries to the person of the said A. B., to the 
 amount of dollars, which said claim, with an 
 
 abstract of the facts out of which it arises, is herewith 
 presented to and filed with the said comptroller of said 
 City of 
 
 The facts out of which such claim arises are briefly 
 these : 
 
 [Describe accident and injury, stating location and nature 
 of defect or obstruction; time and other particulars of accident;
 
 FDBM8. 343 
 
 nature and extent of injury; /acta showing actual or implied 
 notice cud negligence, and absence of contributory negligence.^ 
 
 That the damages sustained by the said A. B. amount 
 to the sum of dollars, which sum the under- 
 
 signed demands from said city, on behalf of said infant, 
 for the injuries received by him. 
 Dated 
 
 CD., 
 General Guardian of A. B., an infant. 
 
 No. 3. 
 
 Claim for the Loss of Services of Wife or 
 Minor Child. 
 
 To the Comptroller of the City of : 
 
 Notice is hereby given that I have and hereby present 
 a claim against the City of for dollars, 
 
 damages, for injuries sustained by my wife C. B. [or, by 
 my minor son D. B.] whereby I have lost and will lose 
 her [or, his] services and have incurred expense for 
 medical attendance and nursing [etc., etc.] and have been 
 otherwise injured to the amount of dollars as 
 
 aforesaid. 
 
 The facts out of which said claim arises are as follows : 
 [Describe accident and injury, etc.] 
 
 No. 4. 
 
 Claim by Personal Representative. 
 
 To the Comptroller of the City of : 
 
 You will please take notice that I, as administrator of 
 the goods, chattels and credits [or, as executor, etc.] of A. 
 B., deceased, have and present a claim, etc. etc.
 
 244 Forms. 
 
 No. 5. 
 
 Notice to Law Officer. 
 
 Laivs 1886, chap. 572. Notice by person injured. 
 
 To , Esq., Corporation Counsel 
 
 [or, City Attorney] of the City of 
 
 You will please take notice that I have a claim against 
 the City of , which was filed with the comptrol- 
 
 ler of said city on the day of , 188 , 
 
 for dollars, damages for a personal injury 
 
 sustained by me on the day of , 18 , 
 
 on street, opposite or nearly opposite premises 
 
 known by street number as , and that I am about 
 
 to commence an action against said city to recover for 
 such injury. 
 
 Dated . [Signature of claimant.'] 
 
 [The above may be varied to meet cases where the action is 
 to be brought by an administrator or executor, a husband or 
 parent for loss of services, etc.'] 
 
 No. 6. 
 
 Complaint "by Person Injured. 
 
 Containing allegations of notice to laiv-officer and of have to 
 sue in forma pauperis. 
 
 [Court, and title of cause.] 
 
 Plaintiff complains and shows to the court : 
 
 First. Upon information and belief, that the defendant 
 
 is a municipal corporation duly organized under the laws 
 
 of the State of New York. 
 
 Second. Also, upon information and belief, that among
 
 Forms. 245 
 
 other things it is by the charter of the said city made its 
 duty to keep the streets and sidewalks in said city in 
 good order, and at all times properly protected and kept 
 clear from all and every obstruction. 
 
 Third. Also upon information and belief, that the 
 street in said city known ;is street has been and 
 
 is much traveled and used by the citizens thereof and 
 others, and is a public street of said city. 
 
 Fourth. That on the day of , 
 
 188 , this plaintiff was carefully passing along the side- 
 walk on the north side of said street ; when at 
 a point between and streets and 
 opposite the house numbered , she fell, and was 
 greatly injured by reason of an obstruction and the unsafe 
 and icy condition of the sidewalk at said point, the same 
 being, and, as the plaintiff is informed and believes, for a 
 long time previously having been covered with ice and 
 snow. 
 
 Fifth. Upon information and belief, that such con- 
 dition of said sidewalk was caused by the negligent 
 conduct of the said city and its officers in the manage- 
 ment and care of its said streets and sidewalks. 
 
 Sixth. That by reason of said fall this plaintiff 
 suffered great and permanent injuries, having broken her 
 right arm at the elbow and having been for a long time, 
 and now being, confined to her house, crippled and 
 rendered sick, sore and lame, and has suffered groat pain, 
 loss and damage, and has been put to great expense for 
 medical attendance, and has been otherwise greatly injured 
 through the negligence of said city and its officers, as 
 aforesaid, to her damage five thousand dollars. 
 
 Seventh. [Add allegation of .service '.of noli' r on <<>mptrol- 
 ler or other officer, where necessary.] 
 
 Eighth. [If defendant be city of 50,000 or more inhabit- 
 ants, add allegation of service of notice on law-officer^ thus:] 
 
 That on or about the day of , 188 , 
 
 notice was duly given to and filed with the corporation 
 counsel to the defendant, being the proper law-officer
 
 246 Forms. 
 
 thereof, of the intention of the plaintiff to commence an 
 action to recover for the injuries aforesaid, which said 
 notice contained a true statement of the time and place at 
 which the said injuries were received. 
 
 Ninth. [If plaintiff sue in forma pauperis, add the 
 folloiving :] 
 
 That prior to the beginning of this action the plaintiff 
 made application in due form of law to this court for 
 leave to bring this action and prosecute the same as a 
 poor person ; and by the order of this court, made at a 
 special term thereof, entered in County Clerk's 
 
 office on the day , 188 , such appli- 
 
 cation was granted, and , Esq., 
 
 was assigned to conduct the same as her attorney and 
 counsel. 
 
 Wherefore, etc. 
 
 No. 7. 
 
 Complaint by Infant through Guardian 
 ad litem. 
 
 Containing allegation of service of claim on* comj)tr oiler. 
 Court. 
 
 A. B., an infant, by C. B., his 
 guardian ad litem, 
 against 
 The City of 
 
 Trial desired 
 in County. 
 
 A. B., an infant, by C. B., his guardian ad litem, for 
 cause of action against the City of , the defend- 
 
 ant in this action, respectfully shows to this court : 
 
 First. That the plaintiff is an infant under the age of 
 twenty-one years, and that by order of this court, made
 
 Forms. 247 
 
 at a Special Term thereof on the day of , 
 
 18 , the said C B. was duly appointed as the guardian 
 ad litem of said plaintiff, who was years of age 
 
 on the day of , 18 , with power and 
 
 authority to commence this action and to prosecute the 
 same as such guardian ad litem on behalf of the said 
 infant plaintiff. 
 
 Second. That the defendant is and for several years 
 next before the commencement of this action has been a 
 municipal corporation, and as such during all said time 
 has been and still is charged with the duty of maintaining 
 and keeping the public streets, avenues, highways and 
 alleys within its corporate limits in good repair and in 
 reasonably safe condition for travel by vehicles, teams 
 and pedestrians. 
 
 Third. That one of the public streets or thorough- 
 fares of the said City of is known and designated 
 as street, which for maii3 r years next before the 
 commencement of this action was worked by the muni- 
 cipal authorities of the City of , and was used as a 
 public street by the citizens of and the traveling 
 public generally. 
 
 Fourth. That on the day of , 
 
 18 , there was a large, deep and dangerous hole or 
 opening in the traveled roadway in the said 
 street near its intersection with street, which 
 
 said hole or opening had long existed and been suffered 
 to be and remain by reason of the negligence, carelessness 
 and want of care and neglect of duty on the part of the 
 defendant and its officers and servants, to wit, for the 
 space of at least four weeks, during all which time 
 said street, at the place aforesaid, was in a defec- 
 
 tive, unsafe and dangerous condition by reason of the said 
 hole or opening. 
 
 Fifth. That before the happening of the injury here- 
 inafter complained of, the municipal authorities of the 
 City of had notice of the said hole in said 
 
 street, or from its public and notorious character they
 
 248 Forms. 
 
 should have had knowledge of said opening or hole, and 
 should have repaired the same. 
 
 Sixth. That on or about the day 
 
 of , 18 , the said plaintiff was lawfully 
 
 riding with his father, the said C. B., in a one-horse wagon 
 drawn by a single horse along and upon said 
 street ; and while he, the said father, was driving the said 
 vehicle, without fault or negligence of the said plaintiff or 
 said driver, one of the forward wheels of said vehicle 
 suddenly dropped into said hole, by reason whereof the 
 said A. B., the plaintiff herein, was suddenly thrown from 
 the said vehicle, precipitated upon the ground, thereby 
 receiving great and permanent injuries to his person by 
 fracturing one or more bones of his shoulder or chest, 
 and otherwise causing great pain, injury and distress, 
 which confined him to the bed for a long time and to the 
 care of physicians, and still does suffer pain and distress 
 from said injury, to the damage of the said plaintiff of 
 five thousand dollars. 
 
 Seventh. That on the day of , 
 
 18 , the claim for which this action is brought, with an 
 abstract or statement of the facts out of which this cause 
 of action arose, made and verified according to bhe statute 
 in such cases made and provided, was duly presented to 
 and filed with the Comptroller of the City of , who 
 
 did not within days thereafter audit or pay the 
 
 same. 
 
 [Add, when necessary, allegation of notice to laiv-qfficer.] 
 
 Wherefore, etc.
 
 Forms. 249 
 
 No. 8. 
 Complaint by Administrator of Infant. 
 
 Containing allegations of appointment of administrator, and of 
 absence of imputable contributor ij negligence. 
 
 Court. Trial desired in county. 
 
 A. B., as administrator of the goods, 
 chattels and credits of C. B., de- 
 ceased, 
 
 against 
 
 The City of 
 
 The above-named plaintiff, as administrator, &c. of C. 
 B., deceased, complains against the above-named defend- 
 ant, and for cause of action alleges : 
 
 First. That the defendant is, and during all the time 
 hereinafter named was, a municipal corporation, duly 
 organized under and by virtue of the laws of the State of 
 New York ; and that among other things it is and was 
 the duty of said defendant to keep and maintain the 
 streets and sidewalks in said city in a good, safe and pass- 
 able condition for persons passing and walking thereon. 
 
 Second. That said defendant, disregarding and neg- 
 lecting its duty in this respect, on the day 
 of , 18 , and for a long time prior thereto, suf- 
 fered and allowed one of the streets in said cit}-, known 
 as street, and particularly the south side- 
 walk thereof, at a point just east of street, to 
 be and remain, to its knowledge, in an unsafe, dangerous 
 and impassable condition for persons walking or passing 
 thereon, by reason of a large wooden structure or counter 
 about eighteen feet long, which leaned against the build- 
 ing on the south side of said street, and projected into 
 and upon the usually travelled sidewalk of said 
 street, about three and one half to four feet.
 
 250 Forms. 
 
 Third. That on said day of , 18 , 
 
 between the hours of two and four, p. M., the plaintiff's 
 intestate, C. B., was on or passing along said 
 street, at the point aforesaid, and without any fault or 
 negligence on his part, or that of his parents or guardians, 
 the said wooden structure or counter fell towards the 
 north, and into or upon about the centre of the sidewalk 
 at that point ; and, in falling, struck and fell upon said 
 C. B., fracturing his skull and otherwise injuring him, 
 from the effects of which injuries he died within four 
 hours after the infliction thereof, to this plaintiff's dam- 
 age five thousand dollars. 
 
 Fourth. This plaintiff further shows that thereafter 
 such proceedings were duly had before the surrogate of 
 Bensselaer county, that on the day of , 
 
 18 , letters of administration were duly granted and 
 issued to this plaintiff upon the estate of the said C. B. ; 
 that this plaintiff on the day last aforesaid duly qualified 
 as the administrator of the goods, chattels and credits of 
 said C. B., and now is such administrator. 
 
 [Here add allegations of serving claim, notice, &c. as re- 
 quired.'] 
 
 Wherefore, &c. 
 
 [Note. — The following allegation has been made in an 
 action by an administrator.'] 
 
 Plaintiff as such administrator further alleges that 
 the said left surviving him his widow, the 
 
 plaintiff, who was dependent on him for her support, 
 besides others, his next of kin, who have been injured by 
 his said death to the amount of at least five thousand 
 dollars.
 
 Forms. 251 
 
 ♦ 
 
 No. 9. 
 
 Complaint by Husband for injury to Wife. 
 
 Only special allegations givt n. 
 
 II. The plaintiff further states that A. B. was on 
 the day of , 1872, and since the year 
 
 1857, has continued to be, and now is married to, and is 
 the wife of the plaintiff. 
 
 V. And, by reason of the premises, the plaintiff has 
 been and will continue to be subjected to great expense 
 in and about procuring necessary medical and surgical 
 and other care and attendance and services for his said 
 wife, and to great loss of money in the loss of her labor 
 and services, and the earnings thereof, which he other- 
 wise would have aud receive ; and, also, to the loss of the 
 comfort of the society and health of his said wife. 
 
 Wherefore, &c. 
 
 No. 10. 
 
 Complaint by Father for injury to Minor 
 
 Child. 
 
 Special aUegatio ns only given. 
 
 I. That on or about the day of , 
 
 188 , the time of the injury hereinafter mentioned, one 
 A. B. was a minor son of the plaintiff, being then be- 
 tween and years of age. 
 
 IV. That by reason of said injuries to his said minor 
 son, the plaintiff has suffered great loss from the want of 
 service of his said son, which, before said injury, said son 
 had been accustomed to render him, and of which he 
 has since been deprived, and from said son's diminished
 
 252 Forms. 
 
 ability to labor for the benefit of the plaintiff, and has 
 been put to great inconvenience and expense, and has 
 suffered great loss and damage for medical attendance 
 and other expenses, to his damage dollars. 
 
 No. 11. 
 
 Complaint against New York City. 
 
 Court of Common Pleas 
 For the City and County of New York. 
 
 A. B. 
 
 against 
 The Mayor, Aldermen and Com- 
 monalty of the City of New 
 York. 
 
 The plaintiff, complaining of the defendants, respect- 
 fully shows to the Court : 
 
 I. That the defendants at all times mentioned in this 
 complaint were, and still are, a body corporate, existing 
 under and duly incorporated by the laws of the State of 
 New York, having the care and charge of the said city 
 and the government and regulation thereof, and of the 
 sidewalks and streets thereof, and bound to keep the 
 same in repair and good order, and free from all dan- 
 gerous incumbrances and obstructions, and well and 
 sufficiently guarded and in a safe condition. 
 
 II. And this plaintiff further shows, on information 
 and belief, that street in said city, 
 between street and place, is one of 
 the old streets of said city, and for several years prior 
 to the time first hereinafter mentioned said street had 
 been regulated and paved and the sidewalk upon the
 
 Forms. 253 
 
 south-easterly side thereof had been paved and kept in 
 a secure and safe condition. 
 
 [Allege nature of defect and facts establishing notice.] 
 
 III. [Allege facts and nat in* of accident and injur y f and 
 absence of contributory negligence.'] 
 
 IV. And this plaintiff further shows that the injuries 
 aforesaid were cause by the acquiescence of the defend- 
 ants in the illegal continuance of the dangerous condition 
 of the sidewalk aforesaid, and by their neglect and 
 omission to have the same cleaned off and made safe for 
 persons passing over the same, and that, as this plaintiff 
 is informed and believes, the defendants had notice and 
 well knew of the existence of said ice and snow on and 
 the dangerous character and condition of said sidewalk. 
 
 V. And this plaintiff further shows that heretofore 
 and on the day of , 188 , she pre- 
 sented to the Comptroller of the City of New York the 
 claim hereinbefore set forth, upon which this action is 
 founded, and that at least thirty days have elapsed since 
 the presentation of the said claim for adjustment as afore- 
 said, but that said Comptroller has hitherto wholly 
 neglected and refused to make any adjustment and pay- 
 ment thereof. 
 
 [Add allegation of notice to law-officer.] 
 Wherefore, etc. 
 
 No. 12. 
 
 Answer by New York City. 
 
 Presentation of claim admitted. Anew r to complaint, Form 
 No. 11, ante. See verification. 
 
 [Court and title of cause.] 
 
 The defendants answer the complaint herein as fol- 
 lows:
 
 254 Foems. 
 
 I. They have no knowledge or information sufficient 
 to form a belief as to each and every allegation therein 
 contained, except as hereinafter specifically admitted. 
 
 II. They admit that they are a municipal corporation, 
 existing under and by virtue of the laws of the State of 
 New York, and they further admit the allegations con- 
 tained in the paragraph of said complaint numbered V. 
 [Presentation of claim.'] 
 
 III. Further answering, the defendants allege that, as 
 they are informed and believe to be true, the injuries 
 claimed to have been sustained by the plaintiff, were 
 caused solely by her negligence, and in no way by negli- 
 gence on the part of the defendants. 
 
 Wherefore, &c. 
 
 City and County ) 
 of New York, ) ' ' 
 
 , the Deputy Comptroller of the City of 
 
 New York, and an officer of the defendant in the above- 
 entitled action, being duly sworn, says that the foregoing 
 answer is true to his knowledge, except as to the matters 
 therein stated to be alleged upon information and belief, 
 and as to those matters he believes it to be true. Depo- 
 nent further says, that the reason why this verification is 
 not made by the defendants, is that they are a corpora- 
 tion, and that this deponent is an officer thereof, to wit : 
 deputy comptroller ; and that the ground of his belief 
 as to all matters not herein stated upon his knowledge, 
 are as follows, to wit : information obtained from the 
 books and records of the department of finance, or of 
 other departments of the city government, or from state- 
 ments made to him by certain officers or agents of the 
 defendants. 
 
 ^~ - ^^ — j 
 
 Deputy Comptroller. 
 
 [Jurat.']
 
 Forms. 255 
 
 No. 13. 
 
 Answer by City of Buffalo. 
 Presentation of claim adffHtted. 
 
 [Court and title of cause.] 
 
 And now comes the defendant, the City of Buffalo, 
 by , its attorney, and for answer to the com- 
 
 plaint of the plaintiff herein, says : 
 
 I. This defendant admits that at all the times men- 
 tioned in said complaint, it was and now is a municipal 
 corporation, duly organized and existing under and by 
 virtue of the laws of the State of New York, and that 
 the plaintiff herein presented his pretended claim for 
 the damages complained of to the common council of the 
 defendant, and demanded payment of the same, and said 
 common council refused to pay said claim, or any part 
 thereof. 
 
 II. And further answering said complaint, this de- 
 fendant says it has no knowledge or information sufficient 
 to form a belief as to the truth of any of the allegations in 
 said complaint contained, not hereinbefore specifically 
 admitted ; and, therefore, denies the same, and each and 
 every part thereof. 
 
 Wherefore, &c.
 
 256 Forms. 
 
 No. 14. 
 Answer by City of Rochester. 
 
 Public street admitted. 
 
 [ Court and title of cause.'] 
 
 For answer to the complaint of the plaintiff in the 
 action above-entitled, the defendant admits that it is a 
 municipal corporation, with powers and duties as in said 
 complaint alleged ; that street, in said com- 
 
 plaint mentioned, is a public street in the city of Roches- 
 ter, and that was and is, as alleged in said 
 complaint, the wife of the plaintiff. 
 
 Further answering, on information and belief, the 
 defendant denies each and every other allegation in said 
 complaint contained. 
 
 Wherefore, &c. 
 
 No. 15. 
 
 Answer by City of Troy. 
 
 Nothing admitted but fact of incorporation. 
 Supreme Court. 
 
 C. B. 
 
 against 
 The City of Troy. 
 
 J 
 
 The City of Troy, the defendant in the above-entitled 
 action, answering the complaint therein, alleges and states 
 as follows, that is to say :
 
 Forms. 257 
 
 First. It admits and avers that the defendant is a 
 municipal corporation, clothed with certain powers and 
 charged with certain duties which are prescribed by 
 law. 
 
 Second. It denies any knowledge or information suffi- 
 cient to form a belief as (.o the truth of any of the allega- 
 tions of the complaint to the effect that the injuries to 
 the plaintiff complained of were produced or occasioned 
 by any negligence or omission of duty on behalf of said 
 defendant, or of any of its officers, agents or servants at 
 the time when and in respect to the place where such 
 injury happened. 
 
 Third. It avers, on information and belief, that the 
 plaintiff's own negligence or want of ordinary care pro- 
 duced or contributed to produce whatever injury he, the 
 said plaintiff, has sustained, and on account of which this 
 action was brought. 
 
 Fourth. It denies any knowledge or information suf- 
 ficient to form a belief a3 to the truth of the allegations 
 contained in said complaint in respect to the presentation 
 to the city comptroller of the verified claim of the plaint- 
 iff, and the facts out of which it arose, and upon which 
 this action is brought. 
 
 Fifth. It controverts and denies each and every alle- 
 gation in said complaint contained, which is not herein 
 admitted or denied specifically. 
 
 Wherefore this defendant demands judgment herein 
 for the dismissal of the complaint, with costs. 
 
 Att'y for Defendant, 
 15 City Hall, Troy, N. Y. 
 
 Rensselaer county, ss. : 
 
 E. F., being sworn, says that he is the mayor of the 
 City of Troy, that he has heard read the foregoing answer, 
 and knows the contents thereof ; that the same is true of. 
 17
 
 258 FoRMS - 
 
 his own knowledge, except the matters therein stated to 
 be alleged on information and belief, and as to those mat- 
 ters he believes it to be true. 
 
 [Jurat]
 
 INDEX. 
 
 A. 
 
 Page 
 
 ABATEMENT at death of person injured 10, 12 
 
 prevented by stipulation 10 
 
 none after verdict 10 
 
 of husband's action for injury to wife 11 
 
 ABUTTING OWNER, liable only by statute 37 
 
 when liable concurrently with city 37 
 
 liability of city not shifted upon 37, 162 
 
 ordinance to clean sidewalk 163 
 
 no recovery over against 166 
 
 ACCEPTANCE of street or highway (See Highway) 
 
 general rule of dedication and 44 
 
 necessary to supplement dedication 47, 50 
 
 necessity of clear proof of 50 
 
 provable by acts 51, 195 
 
 acts to prove, examples 51, 195 
 
 dedication and, leading cases 57 
 
 provable by map 195 
 
 user to prove 52, 55 
 
 by limitation, New York statutes 56 
 
 of structure built by private individual 58, 105 
 
 ACCIDENT, fact of, not notice to city 116 
 
 prior at same place may be proven 204 
 
 ACTS, to prove dedication 46, 195 
 
 to prove acceptance 51, 195 
 
 [259]
 
 260 Index. 
 
 ACTS, of person injured, held negligent 134 
 
 of person injured, held not negligent 155 
 
 ACTUAL NOTICE, to bind city 119-121 ; 200-202 
 
 to whom, sufficient 120, 201 
 
 to whom, insufficient 121, 201 
 
 evidence competent 201 
 
 evidence incompetent 201 
 
 ADOPTED CHILD, parent's action for injury to 12 
 
 ADOPTION of structure, city liable 58, 105 
 
 AGENCY, basis of liability of city for act of officers 79 
 
 AGENT, liable for negligence 36 
 
 concurrently liable with principal 37 
 
 liability of principal for act of 34 
 
 liability of city for act of 92 
 
 not liable if ultra vires 93 
 
 ALBANY, presentation of claim 178 
 
 limitation of time for 172 
 
 ANSWER 189 
 
 ANTICIPATING DANGER, duty of city for jury 129 
 
 APPARENT WALK, city liable for injury upon 70 
 
 ARCHITECT or builder, liable only to employer 36 
 
 AUBURN, presentation of claim 178 
 
 B. 
 
 BAR, by act of decedent, injury causing death 23 
 
 by act of parent, action for death of child 23 
 
 BINGHAMTON, presentation of claim 178 
 
 liability for streets limited 74 
 
 BRIDGES, liability of cities to repair 69 
 
 villages in New York not bound to repair 81 
 
 owned by State, city not liable 69 
 
 even if built by city 93 
 
 unless treated as part of street 69 
 
 over drains, cross-walk includes 67 
 
 BROOKLYN, liability for streets, limited 74 
 
 BUFFALO, presentation of claim 178
 
 Index. 261 
 
 Page 
 
 BURDEN OF PROOF, generally on plaintiff L93 
 
 of negligence, on plaintiff 198 
 
 of contributory negligence 205, 209 
 
 of possession of funds 80 
 
 C. 
 
 CALIFORNIA, action for injuries causing death 13 
 
 CARE OF STREETS, corporate duty 83 
 
 degree of (See Degree of Cake). 
 CARELESSNESS after injury, evidence to mitigate damages. . .156 
 
 CHARTER, liability of cities based on 72 
 
 cities exempt by 74 
 
 as evidence of incorporation 193 
 
 as evidence of duty to repair 194 
 
 CHILD, parent's action for injury to 11 
 
 for death of 20 
 
 ■when release bars 23 
 
 damages in 220, 225 
 
 separate action of 12 
 
 CIRCUMSTANTIAL evidence of negligence 199 
 
 of absence of contributory negli- 
 gence 208 
 
 character of defendant's negligence 208 
 
 instinct of self-preservation 208 
 
 habits of person injured 209 
 
 no appearance of fault 209 
 
 if balanced, no recovery 209 
 
 knowledge of nuisance proven by 27 
 
 CLAIM, presentation of 173-184 
 
 as affecting costs 174 
 
 New York statutes 174 
 
 cases 174 
 
 confined to actions on contract 175 
 
 under charters 177 
 
 Albany 178 
 
 Auburn 178
 
 262 Index. 
 
 Page 
 
 CLAIM, under charters, Binghamton 178 
 
 Buffalo 178 
 
 New York 178 
 
 Oswego 178 
 
 Schenectady 178 
 
 Troy 178 
 
 Utica 178 
 
 statutes not retroactive 179 
 
 to whom 179 
 
 what to present 180 
 
 contents 181 
 
 amount claimed, as affecting recovery 180 
 
 limitation of time 172 
 
 must be pleaded 188 
 
 how proven 194 
 
 COASTING, injuries by 160 
 
 as obstruction 160 
 
 as licensed nuisance 160 
 
 CODE OF CIVIL PBOCEDUBE, § 1776 193 
 
 1870.... 18 
 
 1902-5 16 
 
 3245 175 
 
 COHOES, statute of limitations 171 
 
 COMMISSIONEBS of highways, liability of in New York 78 
 
 COMMON PATH, cities liable for injuries upon 70 
 
 COMPABATIVE NEGLIGENCE 154 
 
 COMPLAINT, Code requisites 185 
 
 particular requisites 186 
 
 cases 187 
 
 CONCUBBENT LIABILITY 37 
 
 abutting owner and city 37 
 
 agent and principal 37 
 
 contractor and city 37 
 
 person causing obstruction and city 38 
 
 servant and master 37 
 
 tenant and owner 37 
 
 CONSTBUCTIVE NOTICE 121-128 ; 202-204
 
 Index. 263 
 
 Page 
 
 CONSTRUCTIVE NOTICE, defined 123 
 
 evidence to establish ; other accidents . . 204 
 
 ordinance 204 
 
 weather records. 203 
 
 inferred from what ; notoriety 202 
 
 length of time... 203 
 
 illustrations 122 
 
 length of time to establish ; generally ..124 
 obstructions by elements . . 125 
 
 what sufficient 121 
 
 CONTRACT, to repair street no excuse to city 164 
 
 theory of liability based on 84 
 
 CONTRACTOR, assuming duty of city, Lability of 36 
 
 to perform certain work, liability of 36 
 
 concurrently liable with city 37 
 
 not bound to build crosswalk where none before 37 
 
 liable for fault of employees 36 
 
 liability of principal for fault of 34 
 
 selection and control of by city 101 
 
 obstruction by, notice to city unnecessary 117 
 
 independent, liability of city for acts of 98 
 
 work dangerous 99 
 
 work not dangerous 98 
 
 supervision by officer 99 
 
 CONTRIBUTORY NEGLIGENCE 131, 205 
 
 general rule 7, 131 
 
 absence need not be pleaded 187 
 
 burden of proof of 205 
 
 circumstantial evidence of 208 
 
 comparative negligence 154 
 
 defective vision, to use street with, not. 144 
 
 degree of care 132 
 
 evidence to prove 233 
 
 imminent danger 153 
 
 imputed 152 
 
 infant, when attributable to 145, 151 
 
 degree of care of, cases 140
 
 264 Index. 
 
 Page 
 CONTRIBUTORY NEGLIGENCE, 
 
 intoxication, when is 145 
 
 not per se 144 
 
 does not excuse 145 
 
 knowledge of defect 139 
 
 cases pro and con. . . 140, 141 
 
 not per se 139 
 
 latent defects 143 
 
 medical treatment, improper, not 233 
 
 non-suit, when proper 237 
 
 of parents 146, 150 
 
 presumption of safety 136 
 
 proximate cause 132 
 
 question for jury 238 
 
 recovery barred, cases 134 
 
 reco rery not barred, cases 155 
 
 right to whole street 138 
 
 carriage-way of bridge 139 
 
 not confined to crosswalk 138 
 
 subsequent carelessness 156 
 
 wrongful act, burden on defendant 203 
 
 CORPORATE DUTY, care of streets is 83 
 
 COSTS, presentation of claim as affecting 174 
 
 CROSS-WALK, part of street 67 
 
 includes bridge over drain 67 
 
 pedestrian not bound to use 138 
 
 contractor not bound to erect 37 
 
 CUL-DE-SAC, dedication of 60 
 
 D. 
 
 DAMAGES, action by person injured 212-219 
 
 compensatory, only 213 
 
 disease as element of 218 
 
 double not recoverable 217 
 
 evidence to prove 216 
 
 to married woman 219 
 
 measure of, generally 213
 
 Index. 265 
 
 Page 
 DAMAGES, action by person injured, pecuniary condition as 
 
 element 219 
 
 prospective 214 
 
 special, what may include 215 
 
 speculative, not recoverable 213, 217 
 
 suffering, as element 217 
 
 mental alone not 218 
 
 to husband 219 
 
 to parent 220 
 
 injury causing death 220-228 
 
 actual and prospective 222 
 
 to beneficiaries only 222 
 
 elements and evidence 223 
 
 interest, New York act of 1870 16, 22G 
 
 limited in New York to $5,000 17 
 
 measure 221, 223 
 
 to parent. 
 
 225 
 
 pecuniary only 221 
 
 summary 227 
 
 evidence to rebut or reduce 234 
 
 excessive 239 
 
 measure in suit to recover over 1GG 
 
 how pleaded 187 
 
 DANGEBS upon highways, instances 2-4 
 
 actual obstructions 3 
 
 actual defects 3 
 
 embankments 4 
 
 excavations 2 
 
 abrupt change of grade 4 
 
 icy sidewalks 2 
 
 objects thrown or falling 4 
 
 causes of fright to horses 4 
 
 some special 157-160 
 
 coasting 157 
 
 ice 160 
 
 imminent (See Imminent Danger). 
 
 of street, enumerated 71
 
 266 Index. 
 
 Page 
 
 DANGEKS off street, recovery allowed 71 
 
 recovery not allowed 71 
 
 DEATH BY NEGLIGENCE 
 
 New York statutes and decisions 14-24 
 
 Act of 1847 14 
 
 amendment of 1849 15 
 
 amendment of 1870 16 
 
 Code of Civil Procedure 16 
 
 abatement at death of wrongdoer. . . 19 
 
 bar by act of beneficiary 23 
 
 bar by act of decedent 23 
 
 beneficiary unnecessary 18, 19 
 
 common-law right of husband or 
 
 parent 11, 20 
 
 damages limited to $5,000 17 
 
 husband as beneficiary 16 
 
 special damage unnecessary 19 
 
 two killed, no joint action 24 
 
 statute of limitations 170 
 
 outside New York 13-14 
 
 California 13 
 
 Georgia 13 
 
 Illinois 13 
 
 Maryland 13 
 
 Massachusetts 13, 14 
 
 Minnesota 13, 14 
 
 Missouri 13 
 
 Nebraska 13 
 
 Pennsylvania 13, 14 
 
 Tennessee 13, 14 
 
 Texas 13, 14 
 
 abatement of action at common law 12 
 
 damages 220 
 
 DEDICATION, and acceptance, highways established by 44-60 
 
 conveyance unnecessary to 46 
 
 of cul-de-sac 60 
 
 defined 45
 
 Index. 2G7 
 
 Page 
 
 DEDICATION, evidence of 40, 196 
 
 part of street only proven 60 
 
 intent must be clear 45 
 
 shown by acts 46 
 
 map to show 46 
 
 actual street on actual map 49 
 
 made or accepted by former owner 47 
 
 or user as private way not sufficient 60 
 
 of public foot- way 60 
 
 revocation of 49 
 
 inferred from user 52 
 
 DEFECT OE OBSTRUCTION ; illustrations 2 
 
 fact of, how proven 196 
 
 DEFECTIVE VISION, use of streets not contributory negli- 
 gence 144 
 
 DEFENDANT in negligence suit, who may be 34 
 
 abutting owner not causing obstruction 36 
 
 agent or servant 36 
 
 architect or builder, not 36 
 
 concurrent liability 37 
 
 contractor 36 
 
 officer 35 
 
 person causing obstruction 34 
 
 principal for act of agent 34 
 
 principal for act of contractor 34 
 
 DEFENDANT'S CASE, generally 230 
 
 absence of notice 233 
 
 contributory negligence 233 
 
 damages 234 
 
 evidence to disprove negligence . 231 
 
 DEGREE OF CARE required of city, reasonable Ill 
 
 active vigilance 101, 114 
 
 duty to anticipate danger 129 
 
 of excavations 89 
 
 not insurer Ill 
 
 proportioned to danger 114 
 
 of public works 113
 
 268 Index. 
 
 Page 
 DEGREE OF CARE required of individual or private corpora- 
 tion 113 
 
 of licensee 31, 32 
 
 of traveller, generally 132 
 
 knowing defect 140 
 
 of infant 146 
 
 DEPARTMENTS, city when liable for acts of ... 96 
 
 when not liable 94 
 
 DESPERATE ALTERNATIVE, question of contributory negli- 
 gence 154 
 
 DISCRETIONARY POWER, of city. 7, 84-86 
 
 DISEASE as element of damages 218 
 
 predisposition to, no bar to recovery 234 
 
 DUAL FUNCTIONS of city 82-91 
 
 E. 
 
 ELEMENTS, obstruction by 124 
 
 ESTABLISHMENT of highways (See Highways). 
 
 EVIDENCE of acceptance of highway 194 
 
 of actual notice 201 
 
 of carelessness after injury 156 
 
 to prove constructive notice 202-4 
 
 length of time 203 
 
 notoriety 202 
 
 ordinance when not 204 
 
 other accidents 204 
 
 weather records 203 
 
 of contributory negligence 209, 233 
 
 of damages 216, 223 
 
 in reduction of damages 234 
 
 of dedication 195 
 
 of defect 196 
 
 of funds 81 
 
 of injury 198, 212 
 
 of negligence 198 
 
 to excuse negligence, competent 230-231 
 
 absence of funds 231
 
 Index. 209 
 
 Page 
 EVIDENCE toexcus- negligence, competent, extent of streets. .231 
 
 ifforts and limitation of power 231 
 
 guard removed by stranger 231 
 
 to excuse negligence, incompetent 231-232 
 
 belief that street safe 232 
 
 competency of officers 232 
 
 contract to repair 232 
 
 incompetency of officers 232 
 
 instructions to agents 232 
 
 legislative authority 232 
 
 that others passed uninjured 232 
 
 that similar or worse places 231 
 
 of notice, license is some 103 
 
 of place of injury 194 
 
 of presentation of claim 191 
 
 of prospective injury 214 
 
 of special damages 215-223 
 
 of repair after injury, to show funds 81 
 
 EXCAVATION, as source of danger 2 
 
 degree of care 8'J 
 
 duty of city to guard, irrespective of contract . . 101 
 
 EXCESSIVE, DAMAGES 239 
 
 EXHIBITION of injured member 212, 213 
 
 may be made 212 
 
 cannot be compelled 213 
 
 F. 
 
 FACT OF INJURY, how proven 212 
 
 by person injured 212 
 
 by others present 212 
 
 by physician 212 
 
 by exhibiting injured member. 212 
 
 FOOT- WAY, dedication of 60 
 
 FORMS, answer, by city of Buffalo 255 
 
 New York 253 
 
 Rochester 2 56 
 
 Troy 25
 
 270 Index. 
 
 Page 
 
 FORMS, complaint, against New York city 252 
 
 by administrator 249 
 
 by husband 251 
 
 by infant, through guardian ad litem 246 
 
 by parent 251 
 
 by person injured 244 
 
 notice to law-officer 244 
 
 statement of claim by guardian 242 
 
 by husband or parent 243 
 
 by person injured 241 
 
 by personal representative 243 
 
 FUNDS, liability dependent on 76 
 
 burden of proof 80 
 
 evidence to show 81 
 
 FUTURE DAMAGES, if no proof as to past 216 
 
 physician may prove 214 
 
 G. 
 
 GEORGIA, action for injuries causing death. 13 
 
 GROUNDS OF LIABILITY, generally 26-34 
 
 negligence 33 
 
 nuisance 26 
 
 of cities (See Municipal Coepo- 
 
 bations). 
 for recovery over 165 
 
 H. 
 
 HIGHWAYS, how established 39-60 
 
 by dedication and acceptance 44-60 
 
 by prescription 41 
 
 by statutory proceeding 40 
 
 acceptance of 50 
 
 establishment of, how proven 194 
 
 within limits, city liable 66 
 
 in towns, who liable 90, 91 
 
 HORSES, objects frightening 4 
 
 (See Runaway Houses.)
 
 Index. 271 
 
 Page 
 
 HUSBAND, action for injury to wife 10 
 
 action for death of wife 11, 20 
 
 as beneficiary in action for death of wife 16 
 
 abatement of action 11 
 
 damages to 219 
 
 statute of limitations 170 
 
 wife's judgment as evidence for 11 
 
 HYDEANTS or leaders, ice forming around 128 
 
 I. 
 
 ICE as obstruction 157 
 
 ridgy or uneven 158 
 
 on uneven walk 100 
 
 smooth 158, 159 
 
 question of notice 125-127 
 
 IGNOEANCE, when negligence 119 
 
 as excusing liability for nuisance 28 
 
 ILLINOIS, action for injury causing death 13 
 
 period of prescription 43 
 
 who to be protected 05 
 
 IMMINENT DANGEE, question of contributory negligence 153 
 
 IMPUTED, NEGLIGENCE 152 
 
 INCOEPOEATION, necessity of proof of, N. Y. Code, \ 1776. . . 193 
 
 INDIANA, period of prescription 43 
 
 INFANT, contributory negligence of 145-152 
 
 degree of care required Mfl 
 
 LNJUEY, fact and extent, how proven 213 
 
 nature of, how pleaded 187 
 
 how proven 198 
 
 INJUEIES without remedy 6, 7 
 
 contributory negligence 7 
 
 discretionary act 7 
 
 necessary obstruction 6 
 
 no negligence 7 
 
 INSUEEE of safety of streets, city not Ill 
 
 INTENT TO DEDICATE, necessary to prove 45 
 
 shown by acts 40
 
 272 Index. 
 
 INTOXICATION, when contributory negligence 145 
 
 not per se 141 
 
 negligence, do excuse for 146 
 
 IOWA, abutting owner not liable 36 
 
 period of prescription 43 
 
 private leading into public ways 69 
 
 J. 
 
 JOINT ACTION by representative of two estates 24 
 
 JOINT NEGLIGENCE, both several and joint liability 38 
 
 no joint liability in Minnesota 38 
 
 JUDGMENT against city as evidence to prove recovery over 166 
 
 of wife as evidence in action for husband 11 
 
 JURY, questions for (See Questions fob Juby). 
 
 JURORS, selection of 190 
 
 rejection of competent • • • 191 
 
 K. 
 KNOWLEDGE OF DEFECT, question of contributory negli- 
 gence 139-143 
 
 not per se 139 
 
 when is 143 
 
 of nuisance, implied from circumstances 27 
 
 L. 
 
 LATENT DEFECTS, notice to city not presumed 128 
 
 caution to anticipate danger 128 
 
 traveller not bound to see 143 
 
 LAW-OFFICER, notice to, New York act of 1886 177 
 
 LICENSE TO OBSTRUCT, generally 30 
 
 none for carelessness 31, 33 
 
 not notice 118 
 
 evidence of notice 103 
 
 effect on liability for nuisance ... 30 
 implied from absence of objection 30 
 to railroad, city not excused by.. 164 
 in absence of, city only liable with 
 
 notice 104 
 
 for coasting 160
 
 Index. 273 
 
 Page 
 
 LICENSED OBSTRUCTION, degree of safety 31 
 
 LICENSEE, liability of city for negligence of 102-104 
 
 license lawful 102 
 
 injury by mode of exercise 103 
 
 license for dangerous thing 102 
 
 recovery over depends on contract 105 
 
 shifting liability upon 1G2 
 
 LIABILITY OF CITIES for streets, bow conferred 79-88 
 
 theory of agency 79 
 
 based on agreement 77 
 
 depends on charter 73 
 
 depends on funds 79 
 
 power implies duty 79 
 
 LIFE, probable duration as element of damages 224 
 
 LIMITATION, of time to present claim 172 
 
 statutory acceptance of higbw ay by 55 
 
 (See Statute of Limitations. | 
 M. 
 
 MAP, to prove highway 195 
 
 dedication by 46 49 
 
 actual 49 
 
 made or accepted by owner «, 48 
 
 binds owner only 47, 48 
 
 effect as to public 48 
 
 MARYLAND, action for injuries causing death 13 
 
 MASSACHUSETTS, action for injuries causing death 13 
 
 period of prescription 43 
 
 private ways leading into public 69 
 
 MASTER, action for injury to servant 12 
 
 liable for negligence of servant 34 
 
 MEASURE OF DAMAGES, generally 213 
 
 injuries causing death 223 
 
 MICHIGAN, place of injury 67 
 
 MINISTERIAL act, liability of city 88 
 
 MINNESOTA, action for injuries causing death 13, 14 
 
 period of prescription 44 
 
 no joint liability 38 
 
 MISSOURI, action for injuries causing death 13 
 
 18
 
 274 Index. 
 
 Page 
 MUNICIPAL CORPORATIONS, control of agents 101 
 
 dual powers 82 
 
 corporate 82 
 
 governmental 82 
 
 general liability 33, 61 
 
 liability limited by statute 74 
 
 Binghamton 74 
 
 Brooklyn 74 
 
 Ogdensburgh 74 
 
 Schenectady 74 
 
 occasions of liability 62 
 
 causing defect ... 62 
 
 negligent construction ... 62 
 permitting defect 62 
 
 primary duty to care for streets. 101 
 
 N. 
 
 NEBRASKA, action for injuries causing death 13 
 
 NECESSARY OBSTRUCTION, license for 30 
 
 ■when no remedy 6 
 
 NEGLIGENCE, burden of proof 198 
 
 comparative 154 
 
 evidence to prove 198 
 
 evidence to excuse 230 
 
 grounds of ; in act 33 
 
 in neglect of duty 34 
 
 ignorance, when is 119 
 
 imputed 152 
 
 must be pleaded 187 
 
 for whose, city liable 92-105 
 
 of agents or servants 92 
 
 of contractors 98 
 
 of licensees 102 
 
 of officers and departments 94 
 
 of other persons 104 
 
 NEGLIGENT act, no license for 33 
 
 plan, liability for 86
 
 Index. 275 
 
 Page 
 
 NEXT OF KIN defined, New York Code 13 
 
 NON-SUIT, when proper for contributory negligence 237 
 
 NORTH CAROLINA, period of prescription 44 
 
 NOTICE TO CITY 
 
 need of, generally 7, 118 
 
 must be pleaded 1" ' 
 
 actual (See Actual Notice). 
 constructive (See Constructive Notice). 
 adjacent premises, no presumption from own- 
 ership of 130 
 
 fact of accident not 117 
 
 fact of obstruction not 116 
 
 duty of supervision 128 
 
 of particular defect 130 
 
 of latent defects, necessary 128 
 
 license not 11° 
 
 some evidence of 108 
 
 unnecessary, if defect caused by city 117 
 
 necessary, if defect caused by wrong-doer. . . 104 
 
 not if adopted by city 105 
 
 statute fixing length constitutional 130 
 
 to whom city chargeable with, illustrations 120 
 
 • councilman »• 1-0 
 
 mayor, or marshal 120 
 
 policeman 1-0 
 
 street commissioner 120 
 
 street superintendent 1-0 
 
 to whom city not chargeable with, illustrations. . .120-121 
 
 one alderman 1-1 
 
 two trustees 121 
 
 janitor 1-1 
 
 lamplighter 1-1 
 
 to law-officer, New York act of 1886 177 
 
 of action pending, unnecessary to recovery over 166 
 
 NOTORIETY, as evidence of constructive notice 202 
 
 NUISANCE, as ground of liability 26-33 
 
 creator of, when not liable 26
 
 276 Index. 
 
 Page 
 
 NUISANCE, general rule 26 
 
 ignorance of, -when may excuse 28 
 
 knowingly maintaining 27 
 
 knowledge implied from circumstances 27 
 
 license as affecting liability 30 
 
 no license for carelessness 31 
 
 maintainer of, who may be 26 
 
 owner and tenant both liable 37 
 
 user or request to abate 29 
 
 O. 
 
 OBSTRUCTIONS and defects, examples 3 
 
 fact of, not notice 116 
 
 for convenience 30 
 
 by city, notice unnecessary 117 
 
 OFFICER, city liable for acts of 96-97 
 
 city not liable for acts of 94-96 
 
 liable for negligence 35 
 
 OGDENSBURGH, limitation of liability 74 
 
 ORDINANCE, abutting owners compelled to clean walks by .... 163 
 
 city may shift liability upon licensees by 162 
 
 not upon abutters 162 
 
 constructive notice, when not evidence of 204 
 
 • directing work, notice of obstruction necessary. .118 
 
 evidence to warrant presumption of obedience. . . 163 
 
 liability of city not increased by 194 
 
 nor by neglect to enforce 194 
 
 omission to make will not excuse city 232 
 
 OSWEGO, presentation of claim 178 
 
 limitation of time for 172 
 
 OWNER, concurrently liable with tenant 37 
 
 abutting, liability of (See Abutter). 
 OWNERSHIP of abutting premises not notice to city 130 
 
 F. 
 
 PARENT, common-law action for death of child 20 
 
 damages to 220 
 
 release by, when bars action for death of child 23 
 
 services of child, action for 11
 
 Index. 277 
 
 PECUNIARY condition as element of damages 221, 225 
 
 PENNSYLVANIA, injuries causing death 13. 14 
 
 PHYSICIAN, evidence of, as to injury 212 
 
 as to future injuries 214, 220 
 
 PLACE OF INJURY, city liable GG-71 
 
 apparent walk 70 
 
 bridge GO 
 
 common path 70 
 
 cross-w.dk G7 
 
 highway within limits G6 
 
 Michigan statute 68 
 
 place off street, cases pro and co/i . 68 
 
 pleading of 188 
 
 private way leading into public. . . 69 
 
 Iowa statute 69 
 
 Massachusetts statute 69 
 
 proof of !:il 
 
 sidewalk 67 
 
 certain cities exempt 68 
 
 place treated as street by authorities 66 
 
 whole street, right to 67 
 
 PLAINTIFF, burden of proof generally 193 
 
 * of negligence 198 
 
 what must establish, and how 
 
 absence of conti-ibutory uegligence 205 
 
 damages 211 
 
 defect or obstruction 196 
 
 duty of city 194 
 
 fact of incorporation 193 
 
 nature of injury 198 
 
 notice 200 
 
 idace of accident, and that it was a highway. . . 194 
 
 jiresentation of claim and notice 194 
 
 PLAINTIFF'S case 193-200 
 
 PLEADINGS (See Complaint ; Abbwbb) 185-189 
 
 PRESUMPTION of safety of streets 136 
 
 PROOF (See Evidence ; Plaintiit's Case ; Defendant's Oabb). 
 PROSPECTIVE damages 214
 
 278 Index. 
 
 Page 
 
 PROSPECTIVE damages, limit of 214 
 
 evidence of 214 
 
 injury causing death 222 
 
 PROTECTION on highway, who entitled to 64, 65 
 
 in New York 64 
 
 in some other States 65 
 
 PROXIMATE cause 
 
 two, rule generally 106 
 
 in city-negligence cases 106 
 
 runaway horses 108 
 
 contributory negligence 132 
 
 PUBLIC and corporate functions of city 82-91 
 
 PUNITIVE damages not allowed 213, 221 
 
 Q. 
 
 QUASI-CORPORATIONS 89-91 
 
 QUESTIONS for court and jury 235-239 
 
 for jury, fact of obstruction ; 197 
 
 whether place highway 196 
 
 whether place treated as street 67 
 
 whether city liable for place off street. ... 70 
 whether proper precaution taken by city.. 129 
 
 when ice obstruction 159 
 
 contributory negligerce 238 
 
 of infants 149,150 
 
 knowledge of defect . .140 
 examples 2o6 
 
 R. 
 
 RAILROAD obstructing road, city not excused 104, 164 
 
 REVOCATION of dedication 49 
 
 RECOVERY over, abutting owner, none against 166 
 
 general rule 164 
 
 grounds of liability 165 
 
 license 165 
 
 contractor 165 
 
 wrong-doer 165
 
 Index. 279 
 
 Page 
 
 RECOVERY over, grounds of, notice 166 
 
 usual 166 
 
 express, unnecessary 106 
 
 only changes burden of proof 106 
 
 judgment us evidence. ... 166 
 
 REVIVAL of husband's action for injuries to wife 11 
 
 RIDGY or uneven ice, notice • ■ 127 
 
 ROCHESTER, statutory acceptance by limitation 56 
 
 RUNAWAY HORSES, liability of city 108 
 
 S. 
 
 SARATOGA SPRINGS, presentation of claim 179 
 
 SCHENECTADY, liability limited 81 
 
 presentation of claim 178 
 
 limitation of time for. . .172 
 
 statute of limitations 171 
 
 SERVANT, liability for negligence 36 
 
 of master for negligence of 34 
 
 master's action for loss of services • • ■ 12 
 
 SERVICES of child, parent's action 11 
 
 measure of value 226 
 
 of servant, master's action 12 
 
 of wife, husband's action 10 
 
 SHIFTING liability 37, 102 164 
 
 by charter 
 
 by contract 104 
 
 SIDEWALK, care of, discretionary in some cities in New York. 68 
 
 cities not liable for exercise of discretion 84 
 
 part of street 08 
 
 not in some States 08 
 
 SOCIETY OF WIFE, husband may recover for loss of 10 
 
 action abates at his death 11 
 
 SOURCES OF DANGER to travellers (See Danohbs). 
 
 SPECIAL DAMAGES, elements and evidence 214, 216 
 
 injury causing death, elements and evi- 
 dence 228 
 
 necessity of proof 19, -1 ■» 
 
 SPECULATIVE DAMAGES not recoverable 213, 217
 
 280 Index. 
 
 Page 
 
 STANDING in street not contributory negligence 155 
 
 STATUTE OF LIMITATIONS 168-172 
 
 action by person injured 169 
 
 before 1876 169 
 
 act of 1876 169 
 
 Code Civ. Pro 169 
 
 action for loss of services 170 
 
 injuries causing death 170 
 
 retroactive, quaere 171 
 
 Cohoes 171 
 
 Oswego. 172 
 
 Schenectady 171 
 
 STATUTORY acceptance of highways, by limitation 56 
 
 establishment of highways 40-41 
 
 prescription in New York 44 
 
 STIPULATION, abatement of action prevented by 10 
 
 STREET, city not liable for discretion in making 83 
 
 proof that place of injury was 194 
 
 right to safety in whole 138 
 
 SUNDAY, travelling on, no bar 233 
 
 SUPERVISION of streets, duty of 128 
 
 T. 
 
 TENANT, concurrently liable with owner . 37 
 
 as maintainer of nuisance 26 
 
 may recover for injury opposite demised premises — 71 
 
 TENNESSEE, action for injuries causing death 13, 14 
 
 TEXAS, action for in juries causing death 13, 14 
 
 TOWN, liable for defective highways ; N. Y. act of 1881 91 
 
 TRAVELLER, general rule of liability of city to 61 
 
 in New York, protection not confined to 65 
 
 only, protected in some States 65 
 
 TROY, inhabitants competent as jurors 191 
 
 presentation of claim 178 
 
 must be pleaded 188 
 
 U. 
 
 ULTRA VIRES, city not liable for act of agent 93 
 
 State bridge, city not liable 69
 
 Index. 281 
 
 Page 
 
 USER, dedication inferred from 49 
 
 no particular time 52 
 
 dedication and acceptance, cases 52 
 
 to prove acceptance 52 
 
 alone, 20 years necessary 53 
 
 against will of owner, no dedication or prescription 53 
 
 of nuisance, liability dependent on 29 
 
 UTICA, presentation of claim 178 
 
 V. 
 
 VILLAGES, New York act of 1870 74 
 
 liability of same nature as cities 115 
 
 W. 
 
 WEATHER RECORDS, evidence of 203 
 
 WIFE, husband's actiou for injury to 10 
 
 death of 11,20 
 
 husband as beneficiary in action for death of 16 
 
 WRONG-DOER, right to recover over against 165 
 
 WRONGFUL ACT, burden of contributory negligence on de- 
 fendant 209 
 
 WHOLE NUMBEB OF PAGES, 332.
 
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