114 N.Y.S. 252 | N.Y. App. Div. | 1908
The ascertainment of the principles of law which must control the disposition of cases of this character is not difficult. An affirmative duty rests upon a municipality to keep its sidewalks reasonably free from accumulations of ice and snow, and the failure to act, after actual notice or after time sufficient to justify the inference of knowledge, presents a question of negligence for the jury’s
The physical situation presented in this case is somewhat unusual. In the night time, on a street in the defendant city, on a steep grade, the plaintiff fell on slippery ice in front of a vacant lot, the level of whose ground was three feet or more above the level of the sidewalk, and so situated that water or melting snow and ice would trickle down upon and across the sidewalk toward the gutter. By the plaintiff’s admission it appears that at the time of the accident there was generally some snow upon the ground. By her admission, and also by the weather bureau reports in evidence, it appears that for three or four days prior to the accident the weather had been thawing and freezing, the thermometer ranging from about forty-six above zero in the warmest part of the day, down to twenty or twenty-one degrees above zero at the coldest part of the day. The only witnesses called by the defendant were two physicians, who testified to the extent of the plaintiff’s injuries. One of the plaintiff’s witnesses of the condition testified that the ice was such as would form when water ran over the sidewalk and froze—not an accumulation of snow, but smooth, slippery ice. The testimony of none of the witnesses is inconsistent with the character of the ice being such as would naturally form from water flowing down from the vacant lot and freezing on top of the compact snow and ice already there. It was agreed by all of the witnesses that the snow and ice had not been removed from the sidewalk in front of this vacant lot at any time during the winter, and the accident took place on January twenty-first. It seems to me perfectly plain that if the vacant lot had not been there to flow its water across the sidewalk the city would have been clearly liable had an accident happened by reason of the fact that it had permitted the snow to accumulate without removal .during the whole winter. But the vacant lot was there; it had snow upon it; the weather was such for three or four days prior to the accident that the snow must have
Then the question arises whether it was negligence to allow water and melting snow to flow across the sidewalk. While it is negligence for the city to allow drains and the like to discharge water over the sidewalks which may freeze, yet the situation in hand is entirely different. In the growth and development of cities like the defendant the presence of vacant lots is absolutely essential, and in a hilly district, such as this was, it is sometimes impossible, until the lot has actually been built upon, to accomplish a satisfactory relationship between the level of the ground and the level of the street or sidewalk unless, at considerable cost in each case, the city compels the owner to rectify the grade or he does so voluntarily himself. To hold the city to any such strict rule of. liability must be conceded unjust and a burden upon taxpayers wholly unwarranted in relation to the results to be obtained, to say nothing of the question of a possible violation of the rights of the owner of the vacant premises.
It seems clear to me, therefore, that had this accident happened by the plaintiff slipping upon the old accumulation of snow and ice which had remained there all winter, the defendant would have been liable, but if she slipped upon the ice formed by the recent freezing of the water discharged from the vacant lot, the defendant would not be liable. There is absolutely nothing in the case to indicate which of the two was the cause of the accident. The only
The judgment ought, therefore, to be reversed and a new trial granted, costs to abide the event.
Jenks and Gaynor, _JJ., concurred; Woodward and Miller, JJ., dissented.
Judgment and order reversed and new trial granted, costs to abide the event.