In examining the Massachusetts cases Stanton v. Springfield, (12 Allen, 566) and Luther v. Worcester (97 Mass., 268), and the like, which are strongly urged on us by the defendant, we must notice that the liability there sued upon is statutory. In the latter case, at page 271, it is said : “ It cannot be supposed that the legislature in malcing towns liable for damages caused by defects in highways intended,” etc. And it will be seen by reference to the former case that the statute is one which applies to towns and cities, requiring them to keep roads “safe and convenient,” and the argument of the court is that towns could not be required to keep roads free from ice. But the only liability under which our cities are is one which arises from the common-law principle of liability for negligence. There is not an absolute duty to keep roads and streets safe and convenient. But there is a duty not to be negligent. And the question of negligence is one for the jury, as has often been said.
I am aware of the danger that juries may sympathize with the injured plaintiff, and may be unjust to the corporation. But that is one of the imperfections of the tribunal, which the people have established. It is no less the lawful .tribunal. Now I cannot see that a smooth surface of icy sidewalk may not be just as dangerous as a ridgy surface. And if the city is liable when it knowingly permits a ridge of ice to continue on a sidewalk, on which a person falls, it must be liable when it knowingly permits a smooth piece of ice to continue, and a similar accident happens. *288The doctrine of Todd v. City of Troy (61 N. Y., 506), does not rest upon the particular shape in which the ice existed. It rests on the duty to exercise an active vigilance to keep the streets in a reasonably safe condition. And such has been the doctrine of the numerous cases which have followed that.
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 tc permit the question of notice to go to the jury.
The court in the present case carefully charged the jury that the mere fact that there was an icy sidewalk was not sufficient; that the question was whether the city had exercised that vigilance which should be exercised under the circumstances. I cannot see that such vigilance should be directed only to uneven, and never to smooth, ice. As to the testimony given in respect to the patrolling of policemen and their instructions, taken in connection with the charge of the court, it seems to me to be unobjectionable. I do not see that the defendant’s liability was made to follow from the acts of the policeman.
I think the judgment and order should be affirmed, with costs.
Bocees, J".:The defendant was bound to keep and maintain its streets in a reasonably safe condition for public travel, and this as regards impediments to safe travel, whether because of actual obstructions, as in the case of hommocks and dangerous obstructions of every kind of a material character, as also because of holes and slippery surfaces. The particular form of the obstruction which may be claimed to be dangerous or otherwise cannot be declared as matter of law, that must depend entirely upon the proof as to what caused the injury. A smooth slippery surface may be dangerous to the traveler, and such condition of danger should be remedied in a case like the present, or liability for injuries to him because of it would follow, so be it that the city had notice, actual or constructive, and in due time after notice omitted to remedy it or to give needful *289warning of tbe danger' tbe injured traveler bimself being free from fault. I am clearly of tbe opinion tbat tbis case was for tbe jury on tbe proof.
Tbe exception taken to tbe evidence, and also to tbe charge of tbe court touching tbe subject of tbe patrolling of tbe streets by tbe police, is, as I think, without force. Tbe learned judge did not, in the admission of tbe proof or in tbe charge, bold as matter of law tbat notice to tbe police was notice to tbe city. He allowed tbe fact to be proved tbat tbe street was patrolled, tbat is, passed over by tbe policeman. Tbis was but showing who passed along the street, and how frequently and bow employed, as evidence bearing on tbe question of constructive notice to tbe city of tbe danger. Had it been intended to raise tbe question whether notice to the policeman was notice to tbe city, it should have been done by obtaining a ruling by tbe court directly upon tbe proposition.
On tbe whole I am of tbe opinion tbat tbe judgment should be affirmed.