88 N.Y.S. 690 | N.Y. App. Div. | 1904
Lead Opinion
This is the ordinary action to recover damages for injuries sustained by falling on an icy sidewalk. The plaintiff had a verdict and defendant appeals.
The plaintiff testified that at the time she fell she was proceeding carefully, and whether or not she was guilty of contributory negligence, upon the evidence at the close of the case, was clearly a question for the jury, but we are unable to find in the record any evidence which justified a finding that the defendant was in any respect negligent.
The obligation resting upon a municipal corporation to remove accumulations of snow and ice from its sidewalks is not an absolute but a qualified one. It is bound to keep the streets and sidewalks in a reasonably safe condition for public travel, and for the non
Thus it was held, in Staley v. Mayor (37 App. Div. 598), that the city was not liable where the plaint,iS sustained an injury by- falling on an icy sidewalk on the 30th of December, 1894. There it appeared that snow commenced to fall on the evening of the twenty-sixth and continued until late that night, when it turned into rain," which continued until noon the following day, when it commenced to snow again, and continued until half-past one of that day. Then it became quite cold and froze hard, which continued until the thirty-first. This case was followed by Hawkins v. Mayor (54 App. Div. 258), where it appeared that snow commenced to fall on the 22d of December, 1896, and continued substantially until late in the afternoon of the twenty-third. Plaintiff was injured on the twenty-fifth, and it was there held that the city was not liable. In the recent case of Crawford v. City of New York (supra) we held the-city was not liable. There snow fell continuously from the 24th te the 30th of November, 1898. Plaintiff was injured on the first of December following. . During the storm the temperature was but little above the freezing point.
Applying the rule-laid down in these cases and- many others-which might be cited to the facts in this case it will at once become
Here the plaintiff slipped and fell on the snow and ice which accumulated upon the walk during the storm which occurred on the twenty-first and twenty-second, and as to- this, as we have already said, the defendant cannot be said to have been negligent because it did not remove it. Whether the snow which fell on the seventeenth, if - it be assumed that the -defendant was liable because it had not removed that, contributed to her fall, the jury could not by any possibility tell. To permit them to attempt to do so was to permit them to speculate and guess, and a verdict based upon any such conclusion cannot stand.
The judgment and order appealed from, therefore, must be reversed and a new trial ordered, with costs to appellant to abide event.
Patterson and Ingraham, JJ., concurred; Lahghlin, J., concurred in result; O’Brien, J., dissented.
Dissenting Opinion
A question of fact was fairly presented as to whether the plaintiff fell and was injured by reason of ice which had been permitted to remain on the sidewalk for a Week or whether the snow storm which began on February twenty-first and ended February twenty-second, the day before the accident, was the proximate cause of her fall and injury. . In the latter case the city would not be liable - under our decisions in Hawkins v. Mayor (54 App. Div. 258) and Crawford v. City of New York (68 id. 107; affd., 174 N. Y. 518). Therein it was held that the city is entitled to wait a reasonable time for abutting owners to remove snow and ice from the sidewalk in front of their houses, and that the lapse of less -than forty-eight hours is not sufficient, as matter of law, tó establish construe
■ Here,, however, it was conceded^ not only that “ there was snow and ice on that street for a week previous,” but when the next witness testified that she noticed the condition of the sidewalk, the ■ court interposed and thus formulated the concession, the defendant making no objection: ■ “ The Court: They (the city authorities) have’admitted it was in that condition for a week.” And in addition it» was testified that there was a heavy snow storm on' February seventeenth, when ten inches of snow fell, and that rough, glassy lumps of ice and snow, four or five inches thick, remained thereafter on the sidewalk, covering it from the entrance to the curb, until the day after the accident; and that although there was a lighter snow storm, beginning on February twenty-first,when three and one-eighth inches of snow fell, and ending February twenty-second, the day prior to the accident, when an inch of snow fell, “ the condition of the sidewalk was just about the same after that storm as it was before.”
Upon the concession and the evidence which tended to support it, therefore, the jury would have been justified in drawing the inference that it was the old ice and lumps of frozen snow which had been permitted to remain on the sidewalk for a week that was the cause of the plaintiff’s injury. I do not understand that any of the cases have gone to the extent of absolving the city entirely from responsibility for injuries resulting from snow and ice upon a sidewalk which, because not removed, has. been for a week a menace to the public. . • .
It is suggested that as the temperature was ■ below freezing most of the week the city was freed from the obligation which otherwise might have rested upon it if the weather had been such as to facilitate removing the ice from the sidewalk. This suggestion, however, does not seem to me entitled to the weight which my associates are inclined to give it, because I understand the real point to be whether the city, by reason of the length of time during which the sidewalk was allowed to remain in a dangerous condition, had actual or constructive notice thereof and a reasonable opportunity to remove the snow and ice. If the city were bound within a week to remove the danger to the public, then, as the coldness of the
It seems to me that if, upon any state of facts, the city could be held liable for injuries received by a pedestrian as the result of a dangerous accumulation of snow and ice upon a. side walk, permitted to remain beyond a reasonable time, then, upon the evidence here presented, there was a question for the jury.
Upon the ground, therefore, that there was sufficient evidence to go to the jury and upon which their verdict could rest, I dissent from the conclusion reached by the majority of the court and think that the judgment should be affirmed.
Judgment and order reversed, new trial ordered, costs to appellant to abide event. ' ,