Hatch v. City of Elmira

126 N.Y.S. 863 | N.Y. App. Div. | 1911

Houghton, J.:

The action is to recover damages for injuries received from falling on an icy sidewalk. The plaintiff proved that ice and snow had been allowed to accumulate upon a sidewalk in the defendant city for some period of time. It had snowed and rained and frozen at intervals, and from the description given as to the condition of the walk it would appear that pedestrians had made footprints in the slush which had frozen. The plaintiff herself describes the walk as “lumpy” and “humpy” all over its surface. The proof is that these humps were from one to two inches in height. There was no ridge in the sidewalk, but simply this uneven surface.

The charter of - the defendant requires forty-eight hours’ actual notice of a defective condition of' a 'sidewalk, resulting from ice or snow, in order to charge the defendant with damages. (Laws of 1906, chap. 477,. § 241.) The defendant insists that the plaintiff failed to prove any notice, or that length of notice, to its superintendent of public works.

Assuming that the proper notice was given we are of opinion that' the accumulation of ice and snow was so slight and of such a character that the defendant cannot be deemed guilty of negligence in failing to remove it. In this climate it is impossible to prevent, the accumulation of some ice and snow on walks of cities and villages. A municipality is only responsible for a defective condition of a sidewalk by reason of snow and ice where dangerous ridges are formed and allowed to remain after the weather has reasonably permitted their removal. A two-incli hummock is not a ridge, and while an uneven icy sidewalk may be difficult to walk upon and a person may slip and fall, a municipality is not responsible for the injury.

In Kopper v. City of Yonkers (110 App. Div. 747; affd., 188 N. Y. 592) and Powers v. Village of Moravia (123 App. Div. 191) and kindred cases, upon which the respondent relies, the municipalities had permitted the discharge of water from buildings to run upon and across the sidewalks thus augmenting the natural accumulation of ice and snow. Those cases turn upon the negligence in permitting water to be so discharged as that it will in certain weather necessarily make an accumulation of ice. The condition in the present case was brought about wholly by natural causes.

The motion of the defendant to dismiss the complaint ‘ should have been granted, and it .was error to submit the question of defendant’s negligence to the jury.

The judgment and order must be reversed and a new trial granted, with costs to the appellant to abide the event.

All concurred, except Smith, P. J.,.not voting.

Judgment and order reversed and new trial granted, with costs to- appellant to abide event.