63 N.Y.S. 499 | N.Y. App. Div. | 1900
Plaintiff and a man named Orvis were walking along the sidewalk on Elk street. In front of premises No. 688 the snow t- and ice had been allowed to accumulate, and by constant usage a path had been formed and packed in the center of the walk, sloping up 3 or 4 inches on the sides of this dish-shaped, space. The worn track was slippery, and 18 to 20 inches in width. This had remained substantially unchanged for three or four weeks. In front of these premises, and'adjacent to the.inner side of the walk,' was a railing of gas pipe, about 18 inches from the ground. As they were going along, the plaintiff turned out to catch a remark of his companion, who was ahead of him, and suddenly slipped; falling upon the pipe, and dislocating two ribs, and otherwise injuring him.
The law has become settled in this state that there is an affirmative duty upon a municipality to keep its sidewalks reasonably free from accumulations of ice and snow. The failure to do this after adequate notice, or after ample time has elapsed to justify the inference of knowledge of the defective condition, constitutes negligence on the part of the city. Keane v. Village of Waterford, 130 N. Y. 188, 29 N. E. 130; Walsh v. City of Buffalo, 17 App. Div. 112, 44 N. Y. Supp. 942; Pomfrey v. Village of Saratoga Springs, 104 N. Y. 459, 11 N. E. 43; Goff v. Village of Little Falls, 20 N. Y. Supp. 175; Haight v. City of Elmira, 42 App. Div. .391, 59 N. Y. Supp. 193. This does not mean that the city insures absolutely safe walks; but the obligation does exist, and it is a fiction unless it -bears fruit, in keeping these walks in a fair degree of safety for the traveling public. In Keane v. Village of Waterford, supra, plaintiff fell on an uneven ridge of ice and snow on the walk, which had been accumulating for about three weeks, and which had never been removed; and a verdict for the plaintiff was sustained. In Walsh v. City of Buffalo, 17 App. Div. 112; 44 N. Y. Supp. 942, there was a like ridge, with sloping sides, which had existed for a considerable time, and a recovery was upheld. In Weston v. City of Troy, 139 N. Y. 281, 34 N. E. 780, there was a ridge of ice on the sidewalk, formed by water falling from a conductor; and the city was held chargeable .with negligence, although the carelessness of the plaintiff caused his judgment to be overturned. This is not the case of newly-formed ice, common to the entire city, but the snow which had fallen several weeks before had never been removed; and that is the pith of the defendant’s negligence. It is therefore to be distinguished from the line of cases like Anthony v. Village of Glens Falls, 4 App. Div. 218, 38 N. Y. Supp. 536, and Kaveny v. City of Troy, 108 N. Y. 571, 15 N. E. 726. In that class of cases there was a general icy condition throughout the entire locality. The weather had been severely cold in each instance before the accident, except for an occasional rain, which added to the slipperiness of the walks and to the difficulty of removing the ice.. There was no lack of effort to make the walks reasonably safe, but the severity of the weather and the climatic changes rendered it impossible to do so by reasonable diligence. In this case the jury could have found from the evidence that the walk remained
The judgment should be reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur, except MCLENNAN, J., who dissents.