The City v. Babcock/Opinion of the Court

It is argued by the plaintiff in error that the defect in the street was so recent that the city could not be deemed to have constructive notice; and, as no actual notice was proved, no liability could attach. But, as this question is not presented by the record, we are not called upon the discuss it, and to declare under what circumstances the city could be exonerated from liability for damages by reason of defective sidewalks. The bill of exceptions does not purport to contain all the evidence on the trial, nor even the substance of it, for it says, after reciting certain proofs, 'that much other testimony was also introduced on the one side and the other which is not reported.'

Such being the case, the correctness of the finding of the jury is not involved, and every presumption is in favor of the verdict, and that it was supported by the evidence on the trial. There was evidence which tended to establish the liability of the city, and the court properly charged the jury that the plaintiff, to maintain her action, must prove that the city had notice of the defect in the street. If the evidence were not enough, the corrective was in the hands of the court, on a motion for a new trial. It was conceded, in the argument, that the court ruled properly in the instructions which were given to the jury; but it was insisted that there was error in refusing to instruct, as requested by the defendant. The court was asked, substantially, to charge the jury, that the city was not responsible, because there was evidence which tended to prove the existence of certain facts. This the court had no right to do. The court could not tell the jury that any legal results followed from evidence which only tended to prove the issue to be tried. This controversy necessarily turned on the finding of the jury upon the evidence, and an instruction, which sought to withdraw from the jury the right to determine matters of fact, was correctly refused.

JUDGMENT AFFIRMED.