This action was previously tried, and came before this General Term upon appeal from a judgment rendered in favor of the plaintiff. (33 Hun, 404.) Upon that appeal it was held that even though the city had no legal right to grant a license to store or keep the wagon 'in the street, still, its liability for the particular injury which caused the death of Cohen could not be sustained, *347upon proof of tlie mere fact of granting the license, as that fact was not the immediate cause of the injury, such injury having resulted from the negligent driving of the ice wagon and the insufficient manner in which Marks had tied up the thills of his wagon. '
It was further held that, to make the city responsible for the injury, some evidence tending to show knowledge on its part, or notice in some form of the insecure or careless mode in which the wagon was stored in the street, must be shown. Having in view the rule of law thus laid down upon the previous appeal in this case, it is necessary to consider whether there was any evidence from which the jury were authorized to infer that the city had notice of the insecure manner in which the thills of Marks’ wagon were tied at the time of the accident in question. In considering this question we must bear in mind the fact that this wagon was used two or three times during the day, and that the thills were tied up after such use. There is no evidence going to show that the same fastening was used on every occasion. Upon the contrary, the only inference to be drawn from the evidence is that it was not tied up by the same string or rope upon every occasion. If this is the fact, then when can it be said that notice, as against the city, commenced to run. Each time the thills were tied up was an independent and separate act, and when the wagon was used, the consequence of that act ended; when the thills of the wagon were tied up anew then responsibility for that act commenced. It appears, from the evidence in this case, that the wagon was in use on the day before the accident happened ; that the shafts were tied up that night; that this accident happened at half-past six the next morning. Now, even if the shafts were improperly secured, sufficient time had not elapsed between the putting of the shafts in this insecure position and the happening of the accident to justify the jury in finding that the city had had notice. And, notwithstanding the expression contained in the,, opinion, when the case was before this court, “ that, if the thills had been securely and properly fastened, as they ought to have been, the fastenings would not have been broken by the blow which turned the wagon partially around and threw down the thills with such violence as to occasion the fatal injury,” it would seem *348that in the securing and fastening up of the thills that the owner of the wagon had no right to anticipate the severe shock to which the fastening was subjected by the wagon being run into as was described by the witnesses. It would seem that the cause of the accident was the negligence of the driver of the ice wagon, and not the negligence of the owner of the wagon in not tying up the thills of his wagon with a rope sufficiently strong to stand such a shock. The evidence in the case, therefore, seems to fail to show such notice to the city as would justify the plaintiffs in recovering.
Judgment appealed from should be affirmed, with costs,
Daniels, J., concurred. Brady, J.:I think the use of the street by the owner of the wagon was a continuous one, and for so long a period as to establish constructive notice of such use by the city and of all the consequences which were likely to result from such use. The wayfarer is entitled to protection, and a violation of this obligation should be punished whenever the city is chargeable with notice of an existing danger which ultimately does him injury.
Judgment affirmed, with costs.