Gianpaola v. Paoli

129 N.Y.S. 180 | N.Y. App. Term. | 1911

LEHMAN, J.

Plaintiff has recovered for loss of his wife’s services from injuries caused by falling upon premises of the defendant by reason of the alleged slippery and icy condition maintained by the defendant on a stoop on said premises. Plaintiff’s wife slipped on the ice on the stoop of the house where she was a tenant. If the ice was due to any condition the maintenance of which would be. chargeable against the defendant as negligence, there should be no difficulty in obtaining the testimony of tenants of the tenement house who would be obliged to ascend the stoop to reach their apartments, yet there is absolutely no testimony to show that the ice was not due solely to the condition of the weather. The plaintiff testifies, it is true, “The stoop was all dirty on account of ice,” and “it was dirty several days before”; but in answer to the next question, “What do you mean by dirty?” he answered “It was full of ice and snow.” Thereafter on recross-examination he testified, “Several days before that it was always full of ice.” The wife herself testified, “There was ice on the last step,” and gave no other description of the stoop.

Sabato Carbone says, “I saw fresh ice on the steps of the stoop,” and on the previous day “it was covered with ice,” and “the ice began to fall two days before that." “As the snow was falling the ice was freezing.”

Diodorus Salvatore testified, “There was ice on the step, and there was also ice on the sidewalk,” and about two hours before the accident “it was full of ice.” On cross-examination, in answer to the question, “And at the time when you looked there, was the ground covered with ice?” he stated, “Everything was full of ice.” This is absolutely the only evidence produced by the plaintiff to show that the defendant was negligent.

In view of the fact that it appears from the official weather reports’ that for two days previous to the accident the weather had been inclement, that sleet and rain fell and froze on the ground, and that the streets were covered with ice, I fail to see how the testimony- that two days before the accident and at the time of the accident the stoop was covered with ice is any evidence of negligence.

[1] Where the proof fails to show a condition due to the landlord’s negligence or which could have been remedied by reasonable care on, his part, the plaintiff should not be permitted to recover.

[2, 3] It is well established that the mere fact that the steps were > covered with ice is insufficient to hold the landlord, unless the ice was j permitted to accumulate there through his negligence, and in this rec- { ord I find no proof of such a fact.

The judgment should be reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.