83 N.Y.S. 620 | N.Y. App. Div. | 1903
The judgment and order should be reversed and a new tria granted, with costs to the appellant to abide event. ' ,
The action was brought to recover damages for injuries to plaintiff alleged to have been caused by the negligence -of the defendant.
The injuries were received by falling upon a sidewalk on one of the defendant’s streets. The walk was in a dangerous condition by reason of the accumulation of snow and ice thereon which it was claimed the city, defendant, was negligent in permitting to-remain.
The verdict was evidently directed upon the ground that there was no proof of defendant’s negligence. The absence of contributory negligence on plaintiff’s part was clearly a question for the jury. Upon the evidence most favorable to the plaintiff the condition of the walk on March 22, 1901, from nine to ten o’clock avm. when the accident happened, was as follows: The walk-was ten ¿and one-lialf feet wide and twenty-six feet long. It was laid on a grade from the street line to the curb line of one inch to the foot. It was constructed of planks running from the street 'line to the curb line. The walk was icy, slanting, uneven, with hills or hummocks of ice two or more inches high, and it was upon one of these hills or hummocks that the plaintiff slipped when she fell and received her injuries. The ice on the walk was three or four inches thick, except, ing that part lying towards the street line, where near the building it had melted so it was not-so thick. ■ This condition of ice upon the walk had existed for a long time, practically all winter. Most, of the ice -had accumulated prior to March 12, 1901, ten days before the accident. There was evidence that some snow fell upon the ice on the walk the night before the" accident, but the plaintiff’s evidence was that the amount of- snow was slight. It seems to us that there can be no doubt but ..that the city was guilty of negligence in permitting the walk in question to remain in the dangerous condition shown. There seems to have been no effort to
The judgment and order should be reversed and a new trial granted, with costs to the appellant to abide event.
All concurred.
Judgment and order reversed and new trial ordered, with costs to the appellant to abide event.