126 N.Y.S. 38 | N.Y. App. Div. | 1910
About midday on the 4th day of December, 1907, the plaintiff was walking in a westerly direction on the northerly sidewalk of Seventy-seventh street, between Columbus and Amsterdam avenues, and when she arrived at a point in front of Public School No. 87, about seventy-five feet east'of Amsterdam avenue, she slipped and fell and sustained the injuries to recover for which this action is brought. The negligence with which the city is charged in the complaint is failure to remove “ the snow and ice which had accumulated and remained in front of the said premises during the night and up to the time when said injuries were sustained,” and “ in the construction of the walk in front of the said premises, in that said walk was built upon a slant to the curb, thereby causing an incline toward the street curb.” There is no other allegation in the complaint with respect to the construction or slant of the walk, and the only other allegation with respect to the snow and ice is as follows: “ That said show and icé had remained all night and the entire morning
The plaintiff testified that she was on her way from her boarding house at Ho. 105 West Seventy-seventh street to Amsterdam avenue on an errand; that she observed that the children had been sliding with sleds in front of the school, and she endeavored to go towards the fence to avoid an accident; that “ the sidewalk was full of ice and snow; it was glassy ice, quite glassy, where the children were sliding;' the children were sliding- there on their sleds ; they were coasting; coasting down the grade to Amsterdam avenue from the school; * * * there was much of a space where the children had been sliding that was worn down; quite a good deal; I.avoided that space and went towards the fence; ' * * * when I fell my feet went up, I went back; both of my feet did not slip from under me; the left foot; it had snowed the night before ; I couldn’t tell if there was very much snow in the streets; * * * there were no ashes or anything of that sort on the walk ; * * * there was so much ice there ” that she could not tell whether there was a slant from the fence to the curb ; that she had rubbers on ; that “ the condition of the walk was glassy, that is, a smooth surface; some parts near the fence were chunked up.” On cross-examination she testified that the inner half of the walk next to the fence “ was cleared off ;” that the loose snow had been removed, .but that “it was all chunked, rough ; ” that she fell “ on the part of the sidewalk, just where the sliding was; I fell on the slippery part, on the icy part; that was nearer the curb; I slipped and my foot went from under me.” It was shown that the width of the sidewalk at the point of the accident was eleven feet; that the slope from the fence to the curb-was one and three-quarters inches, and that the slope towards Amsterdam avenue was about three feet in the hundred feet. The physician and surgeon who attended the plaintiff testified that the Walk “ was in a slippery condition; it was made worse by the boys making a sliding pond from the fence to the
Counsel for the respondent argues- that the longitudinal decline in the walk was a concurring cause of the accident, notwithstanding the fact that no negligence was predicated thereon in the complaint, and the question was- not left to the jury.. He cites Clemence v. City of Auburn (66 N. Y. 334) to sustain his contention. In that case, however, the defect was properly pleaded, and it appeared that there was a longitudinal slope in the walk of six inches in three and a half feet, made by direction of the chairman of. the street committee, who was without authority in the premises, to connect the grade of one street- with another and it did not conform to the lawfully established grade.
Unless a greater duty devolved ón the city with respect to the removal of snow and ice from walks in front of public schools than devolves on it with respect to snow and ice which accumulates in front of private premises, it is perfectly well settled under the authorities that no question of fact is presented for consideration of the jury in an action of this kind where the accident on which the complaint is based occurred within a day of the accumulation, and there was no evidence of actual notice to the city that there was a dangerous accumulation of snow and ice upon the walk. (Harrington v. City of Buffalo, 121 N. Y. 147; Taylor v. City of Yonkers, 105 id. 202; Berger v. Mayor, 65 App. Div. 394.) The duty of the municipality to remove snow and ice is a qualified one and becomes imperative only when a formation or obstruction dangerous to public travel has been created and the city has actual or constructive notice thereof, and after such notice there has elapsed sufficient time within which by reasonable diligence it could have removed the obstruction. (Harrington v. City of Buffalo, supra.)
In the case at bar there is no evidence of actual notice to the city
The title to lands purchased or acquired for public schools is in the city. (Gunnison v. Board of Education, supra; Greater N. Y. Charter, § 1055.) Probably the city owns this public school, but for aught that appears in the record it might have been rented by the board of education. No specific claim that any greater duty devolved on the city with respect to the walk in front of this public school than other walks is made. Usually in cases of this kind the defendant introduces an ordinance by which the. municipality has devolved the duty, in the first instance, of removing snow and ice on the abutting property, owners. No such ordinance was introduced here. ’ It is, however, clearly to be inferred from the evidence that the board of education assumed and customarily performed the duty, in connection with the control and management of the public schools, of. removing the sno.w and, ice from the sidewalks in front of the same, arid that it employed a-janitor’s assistant, janitors and inspectors, charged with the performance of this duty and equipped with the' necessary appliances therefor, and that in addition thereto a supervisory duty in this regard devolved upon the principals of the schools. Although the board of education is an independent body, the city is obliged to furnish the necessary funds to maintain it, and by a long course of business is presumed to have knowledge of these facts. On principle it had, I think, the saíne right to rely on the performance of this duty, in the first instance,
If the inferences most favorable to the plaintiff would have availed. her, of course the court could not dispose of the; case as a matter of law on conflicting testimony; but we are of opinion that there was no evidence sufficient to take the case to the jury on any sustainable theory and that, therefore, the court erred in- denying defendant’s motion for a direction of a verdict. There was no evidence that there was. an accumulation of snow and ice upon the walkwhich required attention by the city even though it had actual notice. Doubtless the children in coming to and going from school and at hours of intermission While the snow was falling or on the . walk attempted to and did slide on it; and with the temperature just below the freezing point doubtless patches of slipperly ice were formed and this was unavoidable; but there is no evidence that there was or had been an accumulation of ice and snow forming a dangerous obstruction to public travel.
It, follows, therefore, that' the judgment and order should be reversed and a new trial granted, with costs to appellant to abide the event.
Ingraham, P. J.:, Clarke, Soott and Miller, JJ., concurred.
Judgment and. order reversed, new trial ordered, costs to appellant to abide event. • \ ’