29 A.D. 524 | N.Y. App. Div. | 1898
Lead Opinion
The plaintiff sustained, an injury from a fall on the northerly side of One Hundred and Forty-fifth street, from thirty-five to forty-five feet east of the corner of Amsterdam avenue and One Hundred and Forty-fifth street, on February 2, 1895 ; and.to recover for the damages sustained by that fall he has brought this action against the city of New York. The locality in cpiestion is largely unimproved. The northeast corner of One Hundred and Forty-fifth street and Amsterdam avenue, extending 100 feet upon One Hundred and Forty-fifth street, was vacant property, only occupied by a small shanty on the corner. The sidewalk was not flagged over its entire width, there being a strip of flagging in the middle of the sidewalk about four feet wide, with dirt on each side. There was some evidence that these flags were not entirely level, but the recovery was not based upon any insufficiency in the flagging, and the learned trial judge expressly charged the jury that there was no evidence that the sidewalk upon which the plaintiff fell was improperly constructed. The right of the plaintiff to recover must, therefore, depend upon the fact that the defendant had been negligent in allowing the sidewalk to become dangerous by reason of an accumulation of ice and snow thereupon, and that by reason of such negligence the plaintiff sustained the injury. While the plaintiff testified that the snow upon this sidewalk had not been removed during the winter, the person who occupied the shanty as an express office upon the property in question testified that his men cleaned the walk after every snow storm and kept it in as good condition as it could be kept; that the snow and ice were taken off if possible, but, if ice on it had become hard, ashes were put upon it. The police officer upon this post was called by the plaintiff and testified that people traveling over the snow upon this sidewalk trod it down so that it became hard, rough and uneven; that the expressman who occupied the shanty on the corner used to clean a pathway along these flags 100 feet in length, and that on the day of the accident there were ice and snow upon the sidewalk where the people had trampled it while passing over it. It would appear from the evidence that
On the morning of the second of February the plaintiff passed over this sidewalk and saw Officer Kelly on the corner and .asked him how it was that there was snow and ice on the sidewalk. Officer Kelly then stopped an ash cart and put ashes on this sidewalk. Subsequently, in the afternoon and after the snow had ceased, the plaintiff returned on the sidewalk, and when he was about thirty-five to forty-five feet from the corner of Amsterdam avenue, slipped and fell, which caused a fracture of the hip joint. The plaintiff testified that he slipped on the snow and fell on the top of this ice ; that he did not slip on slush; that as he fell he swept the snow off the ice and saw solid ice underneath ; that the ice under the snow was smooth ice; that when he looked back he saw the ice which had been covered’by the snow; that the place at which he slipped was smooth and even ; that he did not come in contact with any portion of the flagstone, but that the flagstone was .covered with ice, and the ice was covered with snow. As to the condi
The facts in this case are not unlike those in the case of Taylor v. City of Yonkers (105 N. Y. 206), and what the court therejsays would apply to the case now under consideration : “Another and different emergency sometimes occurs, and was referred to in the charge to the jury. When the streets have been wholly or partially
The rule established in this case is further emphasized by the case of Harrington v. City of Buffalo (121 N. Y. 149). In that case the court says: “ The evidence established the fact that for four days previous to the accident the weather had been warm, causing the snow and ice on the walk to thaw and become soft, wet and sloppy. On the night previous to the accident, the weather suddenly became colder and the snow and slush, in the streets froze hard, forming ice and leaving foot-prints made during the previous sloppy weather, plainly visible in the frozen deposit. In some places the owners of property adjoining the walk had cleaned off the snow, but at the place of the accident it had not for some weeks been entirely removed. Much of the snow falling during that time had passed off through the natural effect of the elements upon it, but the portion referred to was what remained of a much larger accumulation. The walk, as thus shown, presented no unusual appearance for cities in our uncertain and inclement climate, and caused no more objectionable obstacle to safe passage than frequently exists in cities and villages during the cold season. Whatever might have been its condition, so far as danger was to be apprehended, it arose solely from its frozen and slippery condition, and that, as we have seen, was caused by the freezing of the night before the accident. The danger arising from the slipperiness of ice or snow lying in the streets is one which is familiar to everybody residing in our climate, and which every one is exposed to who has occasion to traverse the streets of cities and villages in the winter season. Accidents occurring from such causes are chargeable solely to the persons injured, unless it can be shown that the cause thereof has been occasioned, aggravated or negligently permitted by the act of some third party charged with the duty of obviating or removing it. "x" * * The duty resting .upon municipal corporations to remove accumulations of ice and snow as it falls from time to time upon their streets is a qualified one, and becomes
Upon the whole case, I do not think that the evidence justified a finding of the jury that the injury to the plaintiff was caused by any negligence of the defendant, or by a condition of the street made dangerous by the defendant’s negligence, and for this reason the judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.
Van Brunt, P. J., and McLaughlin, J., concurred; Barrett and Rumsey, JJ., dissented.
Dissenting Opinion
On the 2d day of February, 1895, as the plaintiff was walking on the north sidewalk of One Hundred and Forty-fifth street, between Amsterdam and Convent avenues, he slipped and fell and received serious injuries. He brings this action to recover the damages which these injuries caused to him. Fie claims that the sidewalk at the place where he fell was dangerops because the flagging had been permitted to become rough and uneven and in an unsafe condition by reason of faulty construction and want of repair; and that the snow had been permitted to accumulate upon this rough and uneven sidewalk, and had been beaten down by the constant passage of footmen until it had become icy and slippery; and that this condition of affairs had existed for so long a time that it was the duty of the defendant’s officials to know of it and remedy it, and that he fell upon the ice thus negligently permitted to accumulate. Upon the trial he had a verdict. After the verdict, a motion for a new trial
That the plaintiff slipped and fell at the place where he said he did and received serious injuries, although not admitted, was not seriously disputed ; but the questions litigated were as to the condition of the sidewalk, and whether it had been in that condition so long that the defendants might have been charged with negligence. Upon these points it was not disputed that the flagstones upon the sidewalk had been displaced, and that the walk was rough and uneven on account of the lack of repair; and while this was not insisted upon, and was not permitted to be considered by the jury as the ground upon which a verdict should be rendered, yet, undoubtedly, that condition must be considered as likely to increase the dangers to passersby if the sidewalk was covered with ice and snow. It is easy to be understood that the inequality in the sidewalk would make the ice more dangerous, and, because of the accumulation of ice upon an uneven sidewalk, one passing upon it would be more apt to slip and fall than if the sidewalk had been kept in proper repair. While the sidewalk itself was not necessarily or probably a proximate cause of the slipping, yet the condition of the sidewalk was such as to increase the probability that anybody going over it, if the ice were permitted to accumulate there, would fall or be hurt. In that respect the case is like that of Conklin v. City of Elmira (11 App. Div. 402). The general rule as to the duty of municipal corporations, undoubtedly, is that they are required to use reasonable care to see that the highways are in a reasonably safe condition for those who have occasion to use them. When, however, the dangerous condition of the sidewalk is claimed to result from accumulations of ice and snow, the duty of the corporation is somewhat qualified. It becomes imperative upon the corporation to remove accumulations of ice and snow only when dangerous formations or obstacles have been created and notice of their existence has been received by the corporation, or sufficient time has elapsed to afford presumptive knowledge of their existence and opportunity to effect their removal. (Harrington v. City of Buffalo, 121 N. Y. 147.) This rule has been well settled in this State. In the application of this rule it has been held that the
The important question, however, was whether there was evidence from which the jury might have found that this accident happened because of the old ice that had been 'permitted to remain upon the walk, or because of a new accumulation of ice which took place on the second of February, which the defendant had not had an opportunity to remove, or of which it had not had notice. Starting with the proposition, which was clearly established, that the ice had been rarely removed from this walk, it was made to appear by several witnesses that for a considerable time before the second of February the walk had been slippery and in bad condition. It was not disputed that on several days the weather had been warm and the ice had thawed to some extent, and the weather observer testified that on the twenty-seventh of January there was no ice or snow anywhere in the city. But he testified further that the observation upon which he gave that testimony was confined to places where the ice was not trampled down and where nobody had passed. He did not pretend to say that upon every sidewalk where ice had been permitted to accumulate, the short period of warm weather which took place about the twenty-seventh of January, had melted away every such accumulation. On the contrary, the evidence of the plaintiff’s ■witnesses was positive to the effect that the accumulation at this place had not been melted away, and the knowledge of the conditions warranted the jury in believing their testimony, because it is common knowledge that snow which has been thus trampled upon the sidewalk is hard to melt, and that several days of warm weather have the effect simply to soften the top of it, leaving it again to become icy and slippery whenever a few hours of cold shall occur. The jury might have found then that, on the twenty-seventh day of January and down to the second of February, there still remained on this sidewalk an accumulation of ice. It is said that it snowed
The case of Taylor v. The City of Yonkers (105 N. Y. 202) is not at all in point. In that case there was no doubt upon the evidence, and the court so held, that the immediate cause of the accident was new ice just formed upon a layer of old ice which had been so covered with sand as not to be unsafe. The ground of alleging liability in that case was, that the new ice was formed upon a slope. The court held that if the slope was one concurring cause of the fall, without which the accident would not have happened, the city was liable, but that there was nothing in the case which pointed to the slope as a concurrent cause, beyond the fact that it existed; and so that, upon the testimony, the jury must have found that the only cause of the fall was the ice for which, under the circumstances, the city was not liable and, therefore, the plaintiff could not recover. This case, however, is entirely different. There is no claim that the fact that the sidewalk was out of repair was any cause whatever of the accident. It was entirely eliminated from the case by the charge of the court, and the jury could only find a verdict ’
As has been mentioned, the court charged the jury that if they believed Mr. .O’Keeffe’s statement that the ice upon which he fell was smooth and even their verdict must be for the defendant. That was not a correct statement of the law, but nevertheless the jury were bound by it, but they were not bound to believe Mr. O’Keeffe’s statement, as we have said, because there was sufficient evidence in the case to prove that the ice upon this sidewalk was not smooth but was rough and uneven.
The only other question which requires examination is an objection to the admission of evidence. The injury to the plaintiff was a broken hip. He had stated without objection that his leg was stiff. He was then asked, c’ How 'is it with regard to walking ? ” to which he answered that he walked quite lame. To this evidence an objection was taken upon the ground that there was no allegation of permanent injury or of special damage. The evidence was insisted upon as sufficient under the complaint, and the court, after considerable discussion, admitted it. It is quite true that the plaintiff in actions of this character cannot recover for permanent injury unless he has alleged it, or unless the injury which he does allege is such that necessarily it is permanent, but he is entitled to prove whatever he has alleged. In this case the plaintiff alleged that he fell, broke his hip and did great injury to his person so that he has suffered, and does still suffer, great pain and anguish, and was and is prevented from performing his daily labor and attending to his avocation. Under that allegation he was clearly entitled to show what his condition was down to the time of trial, and whatever was the natural and usual result of the injury which he-had received. (Ehrgott v. Mayor, 96 N. Y. 264.) The fact that he was lame at the time when he was giving his testimony was clearly competent
Judgment and order must be affirmed, with costs.
I also think that this judgment should be affirmed.
Judgment reversed, new trial ordered, costs to appellant to abide" event. .