dissenting:
The first and perhaps the most important question to be decided is whether the action of Andrews in setting back the fence along the street had so far dedicated the land to the public that the village authorities had control of the groimd along the frontage of his ha/rn / and had the village authorities so far accepted the dedication as to make it liable for injuries occasioned by its being left in a dangerous condition at that particular place. There does not seem to be much dispute about the facts.
To make a dedication complete there most be concurrent and mutual action on the part both of the owner and of the public authorities. There must be not only a setting apart and surrender to the public use, of the land by the owner, but also an acceptance by the public authorities to be evinced either by a formal opening or acts of user. (Holdane v. Cold Spring, 21 N. Y., 474; Bridge Co. v. Bachman, 66 id., 261.)
The acts and declarations of the owner must be unmistakable in their purpose and decisive in their character before it can be claimed that an owner has parted with his title so as not to be able *614to reclaim it. And until there has been an acceptance, and both parties have taken definite action, the owner may change his purpose and reclaim his land.
Under the facts as proved, and which remain uncontradicted, I do not see how the village authorities could drive Andrews from the strip of land in front of his barns or compel him to remove obstructions, or, in fact, interfere in anywise with his jurisdiction over it. He owned the land and saw fit to set his fence back, throwing about thirty feet in width open, and which generally, as matter of fact, became and was used as part of an enlarged street. But the space in front of his barns he continued to use and has continued to use. The snow from his roofs has continued to slide off upon the ground along them, and he has been accustomed, as he saw proper from time to time, to remove the snow. According to the proofs, there has been no break in the user since he set back his fences.
Assume that there was a sufficient dedication of the general tract, if it was his mind and he so acted as to retain control of the space in front of his buildings, he continued to hold it as matter of right, even though foot passengers were allowed to pass over it and use it as a sidewalk. The use of the public was subordinate to his. This being so, the village corporation cannot be blamed for that part of the premises being out of repair, or even in a dangerous condition. So much of the land so thrown open by Andrews as was taken possession of by the village authorities and improved, including the sidewalks extending each way from his barns, may be regarded as irrevocably dedicated to the public use as a part of the street; but it is difficult to see how the space in front of his barns, where plaintiff was injured, which Andrews had continued to occupy a/nd use in the ma/nner described, cam, be held to home gone beyond his control. If there was any dispute as to the facts, the question might have been well left to the jury to say whether the dedication of the particular space in front of the barns was complete; but the facts in relation to his manner of using it are uncontradicted and undisputed. A jury would not be justified in finding the fact against the evidence. If this view is correct the recovery of plaintiff cannot be sustained, and it may not be necessary to review the other questions raised by the appellant.
*615There is, however, another difficulty in the way of plaintiffs recovery. The accident to plaintiff occurred in the day-time when the whole street was plain to be seen, a street sixty feet wide. The only obstruction complained of was the accumulation of snow hardened so as to become slippery, which occupied the space in front of Andrews’ barns for about 100 feet. According to the strongest proof the bank of snow and' ice was about three feet deep at the highest point. In passing over it the passenger was required to.go up a grade of about five feet at either end, and get down the same distance at the opposite end. Whatever there was of it was plain to be seen. It is not claimed that the plaintiff had defective sight. Defendant’s counsel requested the court to charge the jury that “ if the defect complained of was such as would be seen by an ordinary person passing along the street, it was negligence for the plaintiff to attempt to pass over the defect.” Also, “ that if the obstruction was visible and apparent to any passenger, the plaintiff was guilty of negligence in attempting to cross it.” The court refused to so charge and counsel excepted.
The meaning of the language of the requests as quoted may not be entirely clear if taken literally. But I think the fair import and scope of the language is to the effect that if the jury find as a matter of fact that the dangerous obstruction was plain to be seen by any person who approached it, including the plaintiff, she ought to have seen it and avoided it. And if under such circumstances she did not do so, but with the difficulty plain before her she attempted its passage, sheotook the risk of the' attempt. And in such case the jury ought to find that she was guilty of contributory negligence. The law will presume that plaintiff had ordinary eyesight and capacity to see a dangerous place and was, in all respects, in the normal condition of ordinary people until the "contrary is made to appear. If she had defective eyesight she should have shown it on the trial.
The decision at circuit implies that a passenger may encounter any dangerous obstacle in the highway or on the sidewalk, and with all the dangers attendant upon the attempt to pass over plainly apparent, and with plenty of room to pass around and avoid the dangerous ground, may yet make the attempt without incurring the charge of bringing upon himself or herself the result of the attempt. *616It seems like an unsafe rule, and, jf adopted as the law, will tend largely to exempt the passenger from the requirements of reasonable care and prudence. Especially in this northern latitude, where ice and snow accumulate in the wintry season faster than man can remove it, it would seem that every person ought to be put on good behavior in that regard, and the law should bid people always to avoid danger when they can plainly see it ahead. If they voluntarily and unnecessarily venture to make contact with the perils of the situation, they must assume all the risks attendant upon it. Tt is not at all like unto the case where the true situation is not plainly discernable, and where the passenger has a right to rely upon the ground being safe ■ and free from dangerous obstructions, as in the traveling ground in front of a railroad passenger station.
The plaintiff, in her complaint, charges that this bank of hardened snow and ice was raised above the level of the sidewalk in such a manner as to greatly endanger the life and limb of a passenger, and her proof is directed to showing that the place was dangerous to pass, and that it had been in that same situation for several weeks, and so long that the village authorities are chargeable with constructive notice of its condition. The village is only liable after notice of the dangerous condition, and the notice in this instance is to be inferred from the long period it had so remained. If the village trustees are chargeable with notice, the plaintiff had the same opportunity to know. The obstruction was one she could not help seeing. The ruling in this case, in substance, holds that the plaintiff, knowing and plainly seeing.that there was a dangerous place in the sidewalk, with ample room to pass around it (as plainly appears in the case), could nevertheless take the chances of danger in passing over it, and yet be entirely free from the charge of contributory negligence. This does not accord with the spirit of the rule always maintained, that in places of danger it behooves the individual to exercise caution and prudence to avoid the danger when it can be avoided.
The only theory of a cause of action in this case is that the loons in quo was a dangerous place, plain to be seen, dangerous to life and limb. It had remained so long that everybody should be presumed to know it. The plaintiff did know it. I think in such case where the plaintiff, instead of going around and avoiding the *617dangerous place, made the attempt to pass over it, she took the risk of all accidents and assumed all the perils of the attempt. (Griffin v. The Mayor, 9 N. Y., 456; Durkin v. City of Troy, 61 Barb., 437.) That was an action for an injury caused to plaintiff from slipping down on a sidewalk in the city of Troy. There was a recovery at the circuit, but the General Term, Third Department, reversed the judgment, and the learned judge who wrote the opinion of the General Term declares “ the obstruction was therefore one to be-avoided by those using the sidewalk, and seeing or being able to see the ice, and, if it could readily be avoided, the failure to avoid it by one using the sidewalk, and plainly seeing the obstruction,, must be accounted negligence.”
In that case, at circuit, the defendant’s counsel requested the circuit judge to charge as matter of law, “ if immediately previous to the accident the plaintiff knew or had noticed that there was ice there, and then took the risk of passing over there safely, he cannot recover.” This request was refused and defendant’s counsel' excepted.
The General Term held this to be clearly errdr, and in commenting upon it, the court say: “ If the ice presented a dangerous-obstruction, which the defendant was bound to do away, by removal' or some other means, so that it was negligence on its part to-leave it on the sidewalk, it must follow that it was negligence-, on the part of plaintiff voluntarily and unnecessarily to venture upon the dangerous obstruction, however carefully he might-attempt to carry himself upon it.” That case went back to the-circuit where, on second trial, the plaintiff was nonsuited, and that ended the litigation.
Almost precisely this ruling has prevailed in the leading States-of the Union, outside of New York. Massachusetts, Illinois and Pennsylvania have held to the rule above stated, and fixed it as a principle of law well settled. (See Magill v. City of Erie, 2 Am. and Eng. Corporation Cases, 579; S. C., 101 Penn. St., 616, a very modern decision by the Supreme Court of Pennsylvania.) There it was held, as matter of law, that “ a foot passenger on the sidewalk of a city street, who with full knowledge of the dangerous character of an obstruction on the pavement, deliberately attempts to walk over it when he could have avoided it by a slight detour into the *618street and who falls and is injured in such attempt is guilty of contributory negligence per seP (And see, also, Fleming v. City of Lackhaven, in Supreme Court, Penn., 19 Am. Law Review, 162.)
The leading cases relied on by the plaintiff in this case are not in conflict with the principle decided in Durkin v. City of Troy (supra). In Evans v. City of Utica (69 N. Y., 166) the judge at ■circuit charged the jury in substance as was requested in this case. As thei’e was conflicting evidence as to whether the plaintiff in that case could see the danger before he got into it, the court left the question to the jury. In that case the accident occurred in the evening when it was dark and no lamps lighted. So in Driscoll v. The Mayor (11 Hun, 101) there was a hole in the sidewalk which plaintiff’s intestate fell into and was thus injured and died. The accident occurred in the nighttime when it was difficult to see. And for that reason the court left it to the jury to say whether, even though she had before then known that the hole was there, her mind at that particular time might not have been so engrossed with business matters that~from inadvertence she omitted to notice the hole. If in that case the dangerous spot had been a prominent object, and the party encountered it in the day time, the decision might have been different. So in Thomas v. Mayor (28 Hun, 110) the plaintiff was injured by a fall caused by a dangerous spot of ice in the sidewalk. He knew the ice was there a day or two before and avoided it. On the day of the accident it appeared that the sidewalk at that place was crowded, and he did not notice the ice until he came upon it. For that reason it was left to the jury to say whether under the circumstances he was guilty of negligence in making the attempt to cross. In the case of Mrs. Pomfrey, if the casualty had happened in the night time when it was so dark that she could not have seen or noticed the dangerous obstruction, or if there had been a crowd in the way so that her vision was obstructed, there might be some reason in regarding it as an open question of fact for the jury.
Under the circumstances of this case I think the court at circuit ought to have charged as requested or taken the still bolder ground, as the facts appeared, that, as matter of law, it was a case of negligence on the part of the plaintiff to attempt crossing the place that she knew and could plainly see was dangerous.
*619There are several other questions raised by the defendant’s counsel relative to the admission of evidence on the trial, and a very grave question as to the powers conferred by defendant’s charter, and the duty of defendant in clearing the sidewalks of ice and snow, which in view of the conclusion I have arrived at above I omit to examine.
I conclude the judgment ought to be reversed.
Judgment and order affirmed, with costs.