Summary
In Kleyle v. City of Oswego (109 App. Div. 330) and Sullivan v. City of Syracuse (77 Hun, 440) it was held that an error in stating the date of an accident was not fatal, since the mistake could not well have operated to the injury of the defendant.
Summary of this case from Weisman v. City of New YorkOpinion
November, 1905.
John Tiernan and George N. Burt, for the appellant.
Thomas L. McKay and James R. O'Gorman, for the respondent.
The judgment and order should be reversed upon questions of law and fact and a new trial granted, with costs to the appellant to abide event.
The action is for damages for personal injuries claimed to have resulted from the defendant's negligence.
The plaintiff on December 11, 1902, slipped on an icy sidewalk in the defendant city and fractured his wrist.
The defendant's charter (Laws of 1895, chap. 394, § 345) provides: "The city of Oswego shall not be liable for the damage or injury sustained by any person, in consequence of any sidewalk or crosswalk in said city being out of repair, unsafe, dangerous, or obstructed by snow, ice or otherwise, unless actual notice of the defective, unsafe or obstructed condition of said sidewalk or crosswalk shall have been given to the common council, the department of works or the superintendent of works, at least forty-eight hours previous to such damage or injury."
The plaintiff attempted to prove this notice by the witness Ryan, who testified that he told the superintendent of works about a week before this accident that he, witness, had just fallen on this walk, and that the condition of things on this street was worse than in the back part of the wards; but did not tell him about the snow and ice on this walk. Considerable discredit was thrown upon this witness' evidence, and the superintendent of works denied the conversation entirely. Whether the talk occurred as testified by Ryan may very likely have been a question of fact for the jury.
Assuming it to have taken place as Ryan states, however, it was hardly such a notice to the superintendent as constituted a compliance with the statute. He did not tell him his own fall was caused by ice or snow on the walk; did not mention snow or ice at all; and there was no proof as to the condition of the walks in the back part of the wards, with which this walk was compared, or that those walks were obstructed by ice or snow.
Upon this evidence the court was hardly justified in submitting to the jury the question of actual notice to the superintendent of works of the dangerous and defective condition of the walk in compliance with the statute quoted. Certainly the finding by the jury that such notice was given, as they must have done in order to render a verdict for plaintiff, was contrary to the evidence in the case.
Section 345 of the charter further provides: "All claims against the city for damages or injury alleged to have arisen from the defective, unsafe, dangerous or obstructed condition of any street, crosswalk, sidewalk, culvert or bridge of the city, or from negligence of the city authorities in respect to any such street, crosswalk, sidewalk, culvert or bridge, shall, within three months after the happening of such damage or injury, be presented to the common council by a writing signed by the claimant, and properly verified, describing the time, place, cause and extent of the damage or injury. The omission to present such claim as aforesaid, within said three months, shall be a bar to any action or proceeding therefor against the city."
In attempted compliance with this statute the plaintiff on March 5, 1903, presented a claim to the common council, stating the date of the accident as December 10 instead of December 11, 1902. The venue of the affidavit verifying the claim was the city and county of Oswego, but the affidavit was taken before a notary, who affixed his seal, and both his signature and seal stated he was an official of New York county.
The court permitted plaintiff to show by parol that he made the affidavit in New York city before a notary of that city, and thereupon the court permitted the venue to be amended by striking out the word "Oswego" and inserting the words "New York" as a clerical error merely.
The court had no authority to make this amendment. We know of no rule of law permitting it to be done. The only question is whether this error, apparently a mistake, could be disregarded and the verification be held to be a substantial compliance with the statute.
Upon the proof in the case we think the affidavit should not be regarded as a nullity. ( Babcock v. Kuntzsch, 85 Hun, 33-35.)
It was suggested in that case that an amendment might be made, but the paper there was an affidavit for a requisition in replevin, and was covered by section 723 of the Code of Civil Procedure as a part of the proceedings in an action.
This affidavit we are considering was not covered by that section, but we think the error was merely clerical in its nature, and might be disregarded. It would be a hard rule that would deprive the plaintiff of his right to recover by reason of such a mistake by the notary.
The court also permitted the error in the date of the accident to be corrected by amendment. We are of the opinion that the court had no power to make this amendment, for the reason that the claim was not a proceeding in the action and so covered by section 723 of the Code of Civil Procedure, and because the city acted upon the claim as it was, and after the action had been commenced no material change could be made in the claim so as to affect the city.
The only question is whether the error was so substantial a one as to prevent a recovery in the case. If it was, then the amendment could not help the plaintiff. If it was not, then the amendment did no harm and may be disregarded. The mistake in the date was not discovered by either party until the trial was nearly finished. All alike supposed the true date of the accident was December tenth. It was finally discovered and conceded it was December eleventh. Did this error deprive the plaintiff of his right to recover in the case?
It was held in Sullivan v. City of Syracuse (77 Hun, 440) that an error of one day in stating the date of the accident was not fatal to the right to recover under a provision like the one in question here, and we think such a rule a reasonable one. Under the circumstances appearing in this case it would be a great hardship to deprive the plaintiff of his right to recover upon such a slight error, one wholly a mistake, and that could not well have operated to the injury of the defendant.
As to the negligence of the defendant with reference to the ice on the walk the ice did not cover the whole walk. It was a strip on the outer edge four or five feet wide and two inches or so in thickness. There was a clear walk inside of this some fifteen feet wide. The whole width of the walk was nineteen and one-half feet.
In the locality of Oswego municipalities should not be held to the most rigid rule in keeping their sidewalks free from ice and snow in the winter.
We think the jury were not justified in this case in charging the defendant with neglect as to snow and ice on the walk in question at the time of this accident. Their verdict was at least contrary to the evidence.
Upon his own evidence the plaintiff was not very careful in passing over the walk and getting upon the icy part when there was a wide space entirely clear inside, but it is possible the question of contributory negligence was for the jury.
All concurred; HISCOCK, J., in result only.
Judgment and order reversed and new trial ordered, with costs to the appellant to abide event, upon questions of law and fact.