Kinney v. . the City of Troy

108 N.Y. 567 | NY | 1888

That this city may be liable to a traveler for injuries occasioned by sidewalks unsafe in consequence of an accumulation of ice, is not to be questioned. (Todd v. City of Troy,61 N.Y. 506.) But here there was no accumulation and it can scarcely be said there was unevenness at the place of the accident. On the contrary, the ice was all in one sheet, "just alike," and of recent formation. Three days before the sidewalk "was all right." It had been thawing the day before, and the day before that. The sidewalk itself was in good order. A city is not bound to keep its sidewalks absolutely free from ice, and we think the learned trial judge erred in submitting the case to the jury as one in which they might find that it had been guilty of some neglect of duty in regard to it. There was no ground for such speculation. It does not appear that ordinary care had not been exercised to keep the walk safe for use in the usual mode by travelers, nor that it was not so. We are unable to find any evidence that its condition was such as should have been noticed by the officers of the city or its police, and there is no suggestion from any quarter that their attention had been called to it. The situation was one common to all cities in a northern climate and to all sidewalks in such cities. A sidewalk, difficult it may be of passage, but if so, from the ordinary action of the elements only, and from a formation of ice which no body of men are competent to prevent, nor under any ordinary circumstances to remove. Something more than a slippery sidewalk must be shown to enable one suffering from it to cast the burden of compensation upon the city. Nothing more appears here, and, we think, the motion of the defendant for a dismissal of the complaint should have been granted.

The judgment appealed from, therefore, should be reversed, and a new trial granted, with costs to abide the event.

All concur, except PECKHAM, J., not sitting.

Judgment reversed.