Peckham, J.:
I think this judgment should be affirmed.
First. The admission in evidence of the by-laws of .the village seems to me to have been an immaterial matter. If they furnished no method of obtaining funds to keep the streets in order, but merely provided that the adjoining owners should do so, as a piece of evidence they had no effect at all. An exception to their admission would not raise the question of defendant’s liability for a mere non-enforcement of its by-laws. This would have been raised by a request to charge that no such liability existed and an exception to a refusal so to charge.
Second. Under the circumstances in which the question to the witness Morris was put, I think no error occurred in permitting its answer. The witness was asked regarding the condition of the place on the ninth of January, when the accident occurred, and for two weeks prior thereto. The witness described it and then added: I speak from ■experience; I know that to be a fact. He meant that he knew the description he had just given of the condition of the street at this point was accurate, as he spoke from experience. The question was then put, “you fell there yourself ? ” and he said “I fell once.” It is evident that he was stating the condition of the sidewalk on the ninth January, and for two weeks prior thereto and that his fall was during that time and that substantially there was during that time no change of condition.
Third. There was no error in refusing to instruct the jury “ that if the obstruction was visible and apparent, to any passer-by, the plaintiff was guilty of negligence in attempting to cross it.” Nor was there any error in the refusal to charge that “ if the' defect complained of was such as would be seen by any ordinary person passing along the street, it was negligence for the plaintiff to attempt to pass over the defect, but she should have gone around the same.”
"Whether plaintiff was guilty of negligence in seeking to pass over the obstruction, even when she saw it, was a question of fact. A person who, in the lawful use of a highway, meets with an obstacle therein, may yet proceed, if it be consistent with reasonable care so to do, and generally this is a question of fact depending upon the nature of the obstruction and all the circumstances surrounding the party. I do not say there can be no case wnere the [610]*610danger in going forward would be so great and so perfectly apparent, that any one persisting with knowledge in doing so would, as matter of law, be guilty of negligence, but I think this is no such case.
The case of Griffin v. The Mayor of New York (9 N. Y., 456) is not in point. The obstacle was such in that case that no ordinarily prudent man would have made the attempt to drive over it, as the attempt was almost certain to result in an accident.
This case is much like that of Dewire v. Bailey (131 Mass., 169), and the remarks of the court therein I fully assent to. (See, too, Weed v. Village of Ballston, 76 N. Y., 329; Minick v. City of Troy, 83 id., 514, and also the cases cited by the court in 131 Mass., supra.)
The obstruction seems to have been an accumulation of snow and ice on the sidewalk, and going the whole way across, so that to entirely avoid it one would have to go out in the street as distinguished from the sidewalk. When such an obstruction is seen by the passer-by, although -he may see that it is harder or more dangerous even to cross than a perfectly level and smooth walk, yet I cannot assent to the proposition that keeping on and making a careful and cautious effort to cross the obstruction is in all cases negligence as matter of law instead of being a simple question of fact. In Durkin v. City of Troy (61 Barb., 437, at page 454) the court describes the place where the accident happened, and it appeared that the plaintiff saw the obstruction or the icy place, and was warned of it at the time.
The requests of the defendant’s counsel in this case took from the jury any question as to whether in fact the plaintiff did see the difficulty in the way, or that it was dangerous to pass over it, and if she did not see it or know that it was dangerous, whether she had any excuse for failing to see or to notice its dangerous qualities. Our courts have held that mere knowledge previously obtained of the existence of an obstruction or of a dangerous place in the street did not necessarily show that plaintiff noticed it at the time of the accident, and whether if the plaintiff did not notice the obstruction, she would then be guilty of negligence has been held to be a question of fact. (See Driscoll v. The Mayor, 11 Hun, 101; Thomas v. The Mayor, 28 Hun, 110; Evans v. City of Utica, 69 N. Y., [611]*611166; McRickard v. Flint, in Ct. of App., reported 20 Weekly Dig., at p. 328,)
In 69 New York (supra) the Court of Appeals holds that mere knowledge of the existence of ice does not render the person negligent as matter of law in attempting to pass. In that case somewhat similar requests were made and refused. I think the right disposition was made of the requests by the modification of them by the judge. There was no error, therefore, in refusing the requests, for even if the obstructions were apparent, and such as an ordinary person might see, yet possibly the plaintiff in passing along, intent on her business and assuming the safety of the street, did not notice its dangerous condition, and if she did not, whether she was excused from such notice, was a question for the jury. In other words, taking the whole circumstances of the case into consideration, the question as to the negligence of the plaintiff was one for the jury and not for the court. The requests of the defendant’s counsel were properly modified by the learned judge, and there was-no error in his disposition of the whole question. .
Fourth. To my mind it is plain that the evidence made a dedication and acceptance of the street and the locus in quo. Certainly the jury m coming to that conclusion, under the charge of the learned judge, agreed upon no verdict which was against the evidence. The fact plainly appears that the strip in question forms part of a continuous line of street which has been controlled by defendant for years. It is equally plain that the only user of the strip, by the original owner or his assigns, was to cross the sidewalk in obtaining access tp his barn from the street, just the same thing that is done by every owner of property on a street, access to which by carriage is across the sidewalk. The evidence does not show that Mr. Andrews exercised control over this spot. It simply shows that he placed his wagons and sleighs on and at times somewhat obstructed the clear passage over the sidewalk, so that persons in passing along might occasionally have to go around this temporary obstruction. This is frequently done by persons who have made no claim to any right to the sidewalk, and is not necessarily any such control over the land as to take it out of the description of a village street. At most it is evidence bearing upon the question of dedication and acceptance, which question was sub[612]*612mitted to the jury.
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Peckham, J.:
I think this judgment should be affirmed.
First. The admission in evidence of the by-laws of .the village seems to me to have been an immaterial matter. If they furnished no method of obtaining funds to keep the streets in order, but merely provided that the adjoining owners should do so, as a piece of evidence they had no effect at all. An exception to their admission would not raise the question of defendant’s liability for a mere non-enforcement of its by-laws. This would have been raised by a request to charge that no such liability existed and an exception to a refusal so to charge.
Second. Under the circumstances in which the question to the witness Morris was put, I think no error occurred in permitting its answer. The witness was asked regarding the condition of the place on the ninth of January, when the accident occurred, and for two weeks prior thereto. The witness described it and then added: I speak from ■experience; I know that to be a fact. He meant that he knew the description he had just given of the condition of the street at this point was accurate, as he spoke from experience. The question was then put, “you fell there yourself ? ” and he said “I fell once.” It is evident that he was stating the condition of the sidewalk on the ninth January, and for two weeks prior thereto and that his fall was during that time and that substantially there was during that time no change of condition.
Third. There was no error in refusing to instruct the jury “ that if the obstruction was visible and apparent, to any passer-by, the plaintiff was guilty of negligence in attempting to cross it.” Nor was there any error in the refusal to charge that “ if the' defect complained of was such as would be seen by any ordinary person passing along the street, it was negligence for the plaintiff to attempt to pass over the defect, but she should have gone around the same.”
"Whether plaintiff was guilty of negligence in seeking to pass over the obstruction, even when she saw it, was a question of fact. A person who, in the lawful use of a highway, meets with an obstacle therein, may yet proceed, if it be consistent with reasonable care so to do, and generally this is a question of fact depending upon the nature of the obstruction and all the circumstances surrounding the party. I do not say there can be no case wnere the [610]*610danger in going forward would be so great and so perfectly apparent, that any one persisting with knowledge in doing so would, as matter of law, be guilty of negligence, but I think this is no such case.
The case of Griffin v. The Mayor of New York (9 N. Y., 456) is not in point. The obstacle was such in that case that no ordinarily prudent man would have made the attempt to drive over it, as the attempt was almost certain to result in an accident.
This case is much like that of Dewire v. Bailey (131 Mass., 169), and the remarks of the court therein I fully assent to. (See, too, Weed v. Village of Ballston, 76 N. Y., 329; Minick v. City of Troy, 83 id., 514, and also the cases cited by the court in 131 Mass., supra.)
The obstruction seems to have been an accumulation of snow and ice on the sidewalk, and going the whole way across, so that to entirely avoid it one would have to go out in the street as distinguished from the sidewalk. When such an obstruction is seen by the passer-by, although -he may see that it is harder or more dangerous even to cross than a perfectly level and smooth walk, yet I cannot assent to the proposition that keeping on and making a careful and cautious effort to cross the obstruction is in all cases negligence as matter of law instead of being a simple question of fact. In Durkin v. City of Troy (61 Barb., 437, at page 454) the court describes the place where the accident happened, and it appeared that the plaintiff saw the obstruction or the icy place, and was warned of it at the time.
The requests of the defendant’s counsel in this case took from the jury any question as to whether in fact the plaintiff did see the difficulty in the way, or that it was dangerous to pass over it, and if she did not see it or know that it was dangerous, whether she had any excuse for failing to see or to notice its dangerous qualities. Our courts have held that mere knowledge previously obtained of the existence of an obstruction or of a dangerous place in the street did not necessarily show that plaintiff noticed it at the time of the accident, and whether if the plaintiff did not notice the obstruction, she would then be guilty of negligence has been held to be a question of fact. (See Driscoll v. The Mayor, 11 Hun, 101; Thomas v. The Mayor, 28 Hun, 110; Evans v. City of Utica, 69 N. Y., [611]*611166; McRickard v. Flint, in Ct. of App., reported 20 Weekly Dig., at p. 328,)
In 69 New York (supra) the Court of Appeals holds that mere knowledge of the existence of ice does not render the person negligent as matter of law in attempting to pass. In that case somewhat similar requests were made and refused. I think the right disposition was made of the requests by the modification of them by the judge. There was no error, therefore, in refusing the requests, for even if the obstructions were apparent, and such as an ordinary person might see, yet possibly the plaintiff in passing along, intent on her business and assuming the safety of the street, did not notice its dangerous condition, and if she did not, whether she was excused from such notice, was a question for the jury. In other words, taking the whole circumstances of the case into consideration, the question as to the negligence of the plaintiff was one for the jury and not for the court. The requests of the defendant’s counsel were properly modified by the learned judge, and there was-no error in his disposition of the whole question. .
Fourth. To my mind it is plain that the evidence made a dedication and acceptance of the street and the locus in quo. Certainly the jury m coming to that conclusion, under the charge of the learned judge, agreed upon no verdict which was against the evidence. The fact plainly appears that the strip in question forms part of a continuous line of street which has been controlled by defendant for years. It is equally plain that the only user of the strip, by the original owner or his assigns, was to cross the sidewalk in obtaining access tp his barn from the street, just the same thing that is done by every owner of property on a street, access to which by carriage is across the sidewalk. The evidence does not show that Mr. Andrews exercised control over this spot. It simply shows that he placed his wagons and sleighs on and at times somewhat obstructed the clear passage over the sidewalk, so that persons in passing along might occasionally have to go around this temporary obstruction. This is frequently done by persons who have made no claim to any right to the sidewalk, and is not necessarily any such control over the land as to take it out of the description of a village street. At most it is evidence bearing upon the question of dedication and acceptance, which question was sub[612]*612mitted to the jury. As to the claim that a dedication must, under the evidence, have been made subject to the right to obstruct the street or sidewalk by snow which had fallen from the barn, I regard it as not well founded, certainly not so well founded from the evidence as to make it a matter of law that no legal and unconditional dedication and acceptance had been proved.
Fifth. The last proposition of the defendant, that there was no way of raising funds for the keeping of the streets free from a dangerous accumulation of snow and ice, I do not regard as well founded. By section 38 of the charter (chap. 220 of 1866) the village superintendent must within ten days prior to the annual village election report in writing to the trustees the condition of the *' * * sidewalks * * * with the probable amount necessary to keep them all in good order during the coming year. It is not keeping them in good order to permit a dangerous accumulation of snow and ice in any of such streets. By section 54 the trustees are authorized, for the purpose of providing the means of sustaining the several departments and defraying the expenses of the corporation, to levy and collect an annual tax, not exceeding $5,000, for the support of roads, bridges, culverts, streets, lanes and alleys within the village. This language include's the sidewalks of streets, and the expression “ for the support of streets,” etc., when thus used, means keeping the whole street, including sidewalks in order, and keeping such places in order includes the removal of dangerous obstacles therefrom. There was no proof of a want of funds in this department, or for the purpose of the support of roads, streets, etc. A question was, indeed, put to the superintendent of the village whether he had at the time of the accident funds in his hands for the purpose of the cleaning of sidewalks, and he said he had not. The answer to this question was as the case shows, simply an opinion of the superintendent and not a mere statement of fact, and the superintendent, while paving plenty of funds for the support of roads, streets, etc., may have supposed such funds not applicable to cleaning sidewalks. This is made entirely clear when in answer to the question : “You say you had no money in your hands for the purpose of keeping snow and ice off the street ? ” the witness said, “ no, sir;” and to the additional question, “ Did you ever have ? ” He said again, “ No, sir.” It is [613]*613plain the witness was of the opinion that money raised for the purpose of providing the means of ■ sustaining the several departments and defraying the expenses of the corporation by the trustees, and some of it devoted to the support of roads, streets, etc., did not include a purpose of removing obstructions in a sidewalk if composed of accumulations of ice and snow. In this construction we think the superintendent erred.
It appears, therefore, that there were methods provided by law by which funds could be raised for the purpose, among other things, of keeping the streets and sidewalks in good order, and it does not appear that the funds which the trustees were authorized to raise for this purpose were insufficient or had become exhausted. This fact should have been shown if it existed. (Hines v. City of Lockport, 50 N. Y., 236.) No defense, therefore, is made out on the ground of a lack of funds.
There are no other questions, and I think the judgment should be affirmed, with costs.
Learned, P. J., concurred.