48 N.Y.S. 892 | N.Y. App. Div. | 1897
The plaintiff was injured by slipping and falling upon snow and ice 'which covered a portion of the sidewalk in front of the defendant’s premises on Park avenue in the city of Brooklyn. He brought an action, in the first instance, against the city of Brooklyn, alleging that the city had negligently suffered the sidewalk to become dangerous by reason of the accumulation of ice and snow thereon.. In this suit he was apparently unsuccessful. In the present action he seeks to recover damages from the landowner whose lot abuts on the street at the place' of the accident, not on the ground of negligence, but upon the ground that he committed a wrong by sweeping the snow on to the sidewalk in .front of his premises and thereby-created a dangerous obstruction in the street.
Actionable negligence in favor of a party injured by falling on snow and ice upon a sidewalk is not predicable of the failure of the= adjacent landowner to remove the snow and ice from the sidewalk, as required by a municipal ordinance. (Moore v. Gadsden, 93 N. Y. 12.) The gravamen of the complaint in the case at bar, however, is the averment in substance that the dangerous condition of' the street which caused the injury to the plaintiff was occasioned by the defendant’s wrongful act in sweeping out snow from his own lot on to the sidewalk, where it accumulated and formed an obstruction which imperiled the safety of persons lawfully using the street; for purposes of public travel.
There is no doubt that an individual is liable for thus interfering-with the safety of persons using the highway if injury results to ' them. from, the condition thus created. (Shipley v. Fifty Associates, 101 Mass. 251.) But to make out a case.the plaintiff must-show not only that.the defendant swept out the snow, or caused it; to be swept out, but that it was allowed to remain upon the sidewalk.
This burden the plaintiff has failed to sustain. There is proof:
Where a plaintiff’s right to recover depends, as in this case, upon proof not merely of an omission of duty, but of the commission of a wrong, his cause of action cannot be established by drawing such liberal inferences as would have been necessary to take this case to the jury.
I think the learned trial judge was right in dismissing the complaint.
All concurred.
Judgment affirmed, with costs.