56 N.Y.S. 66 | N.Y. App. Div. | 1899
This action was begun February 14, 1895, to recover damages for personal injuries, caused, it is alleged, by the negligence of the defendant. The defendant is a domestic corporation organized as a social -club under chapter 267 of the Laws of 1875, which was repealed, except section 7, by 'Chapter 559 of the Laws of 1895 (The Membership Corporations Law). During the year 1892 the defendant was the owner and occupant of a club house on the west side of North Clinton street in the city of Rochester. On the north side of the club house was a ■driveway by which carriages entered the f rounds of the club from the street and reurned from the grounds to the street. January 16, 1892, the plaintiff, then aged twenty-eight years, was employed in the •store of Sibley, Lindsay & Curr, and in returning to her home from the store in the -evening of that day she slipped on the ice which had been allowed to accumulate on the sidewalk at or near the driveway, and "broke one of the bones of her left ankle, causing her great pain and much loss of time, and from the effects of the injury she "has never recovered. It appears by the undisputed evidence that the water which ■came from the north side of the defendant’s roof was allowed to flow along the driveway .and cover the sidewalk and there freeze. The defendant’s servants, to facilitate the discharge of water from its grounds, cut a gutter which gathered the water and carried it onto and over the sidewalk. This gutter or channel is said to have been about .a foot in width. The plaintiff testified that •she thought the stream of water which had been allowed to flow over the sidewalk when ■she had previously passed by there was -about two inches deep, and that it continued to run until it froze. She testified that when ¡she passed over the walk at noon of the day •of the accident the sun was shining and the water flowing, and that the water ran down the walk towards Franklin street and across the next driveway into the gutter in front of the next building. She testified that the ice was in ridges, with a rough uneven surface; that the gutter was cut down into the ice and snow as far back from the walk as she could see. The plaintiff’s sister testified that in the afternoon of the day of the accident she passed this driveway and that the ice on its surface was very thick, and the gutter through which the water flowed from the grounds of the club was visible, and that -she had seen water flowing through it. She testified that the ice was thick, six inches in places, often more, and “humpy.” Bertha JLhrig testified that, January 16,1892, between twelve and one o’clock, she passed by the club house and saw water flowing over the sidewalk in front of defendant’s driveway which came from defendant’s grounds; that there was ice on the walk over which the water was flowing, and that it was then ■freezing; that she had trouble in passing -over the walk and nearly slipped and fell. She said that the water when it reached the .sidewalk flowed all over it on both sides of the driveway in front of the club and in front of her sister’s place, which was the ¡next house north. Ernest L. Miller testified that he resided in January, 1892, in the house next north of the club, and had lived -there for sixteen years; that prior to the •.sixteenth of January, he had been confined to his bedroom, which faced towards the club house, and that he saw defendant’s employees working about the grounds on the morning of the day of the accident; saw them picking there, and saw lots of water running down into the cellarway of the club. Emma Miller testified that she passed along the walk on the 16th of January, 1892, ana that she stepped into a lot of water running across the sidewalk at the driveway, and that the water came from the club house property, and that she fell on the walk by the club house. Augustus C. Danks testified that he observed the walk in front of the club house two or three days before the accident, and shortly after the accident, and that he saw water running from defendant’s land down the driveway over the sidewalk, and freezing as it ran, and that he saw a person cutting a channel from the back of defendant's grounds down to the street on the north side of the driveway, and that he saw the water running through this channel across the sidewalk. He testified that he was a plumber, and that he saw water coming from a conductor pipe leading into the ground, and that water came right up out of it; that the conductor led the water from the roof to a sewer; that the water, instead of entering the sewer, flowed through the gutter over the sidewalk. Other evidence of the same character was given, but I think enough has been quoted to show that there was evidence which would have authorized the jury to find that the defendant was negligent in permitting water to flow from its grounds over this sidewalk for this length of time, and allow it to freeze there. The evidence in the case is sufficient to authorize the jury to have found that the plaintiff did not, by her own negligence, contribute to the accident. The court erred in granting a nonsuit.—The judgment and order should be reversed, and a new trial granted, with costs to the appellant to abide the event. All concurred, except Ward, J., not voting.
