90 N.Y.S. 596 | N.Y. App. Div. | 1904
The plaintiff was injured by a fall upon what was alleged to be an accumulation of snow and ice on the sidewalk of Columbia street in the borough of Brooklyn, but this is not quite accurate, for the plaintiff was injured in front of an alleyway, and the walk at that point is rather a crosswalk than a sidewalk, and the ordinance of the former city of Brooklyn in evidence in this case relates solely to the duty of persons to see to it that no snow or ice shall be permitted to “remain on the sidewalk and gutter in front of any house, building or lot occupied by him, or of any unoccupied house, building or lot owned by him, more than four hours after the fall thereof.” It has no relation to the duty of the city in respect to its crosswalks, and it must be assumed, therefore, that this duty is
In the O'Hara case, moreover, it appeared that a severe snow storm visited the city on the fifteenth and sixteenth days of December ; that the snow ceased to fall at about three o’clock in the afternoon of the latter day, without any evidence to show what the intervening weather may have been, and the accident occurred about eleven o’clock in the evening of the nineteenth, and this court held that the question of the defendant’s negligence in failing to act after the owners of the premises had been in default for more than four hours (this fact being known to the policeman, who was, under the ordinances of the city in evidence, charged with the duty of reporting upon the condition of the streets), was for the jury.
In the case now before us the evidence discloses that the snow storm which produced the alleged dangerous condition of the walk began at seven-fifty-five a. m. of March 15,1900, and ended at seven-eighteen p. m. of the same day; that this was followed by sleet, which lasted until twelve-thirty a. m. of the sixteenth, when it became rain and sleet, which continued at intervals until seven-forty A. m., and was followed later by a light snow. After the storm closed the temperature fell below the freezing point and remained so nearly all of the sixteenth, and on the eighteenth, the day of the accident, the temperature was below the freezing point until the
The undisputed evidence in this case is that the storm, which ended with sleet and rain, came to a close about forty-eight hours before the happening of the accident, and that this was followed by a temperature, which remained below the freezing point until after
While there was some dispute as to whether there was a previous accumulation of snow, and ice upon this walk, it can have no bearing upon the case. Whatever there was below, it had been modified and changed by the falling snow, the tramping of pedestrians over it as it fell, and the sleet, rain and freezing temperature, and the only question is whether the condition as thus created charged the defendant with liability. We think it did not and that the judgment should be affirmed.
The judgment appealed should be affirmed.
Judgment unanimously affirmed, with costs.