105 N.Y. 202 | NY | 1887
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *204 This case was submitted to the jury under instructions that a municipal corporation is bound to keep its sidewalks safe and convenient for the passage of the public, so far as reasonable diligence and the possession of adequate resources will allow; and the application of this rule to conditions resulting from the rigors and changes of a northern winter, and to two emergencies which frequently occur, was very fairly and justly discussed and limited. It often happens that in a single day or night, every street and sidewalk in a city or village is covered with a heavy fall of snow. It is not expected and cannot be required that the corporation shall itself forthwith employ laborers to clean all the walks, and so accomplish the object by a slow and expensive process, when the result may be effected more swiftly and easily by imposing that duty upon the citizens. Each can promptly and without unreasonable burden clean the snow from his own premises, and the authorities may justly and lawfully require that to be done under the jurisdiction conferred by their charters. But though the municipality makes the necessary regulation it is not thereby relieved from responsibility. The duty remains, and it must, therefore, see to it that its ordinance is obeyed. *206 It is entitled, however, to a reasonable time within which to perform the duty in the manner permitted, and is not guilty of negligence, if, observing that the work is being generally done, it awaits for a reasonable period the action of the citizens. But when such reasonable time has been given, the corporation must compel the adjoining owners or occupants to act, or do the work itself, and if it suffers the obstruction to remain thereafter, with notice, actual or constructive, of its existence, it may become responsible for injuries resulting. Another and different emergency sometimes occurs and was referred to in the charge to the jury. When the streets have been wholly or partially cleaned it often happens that a fall of rain or the melting of adjoining snow is suddenly followed by severe cold, which covers everything with a film or layer of ice and makes the walks slippery and dangerous. This frozen surface it is practically impossible to remove until a thaw comes which remedies the evil. The municipality is not negligent for awaiting that result. It may and should require householders, when the danger is great, to sprinkle upon the surface ashes or sand or the like, as a measure of prudence and precaution, but is not responsible for their omission. It is no more bound to put upon the ice, which it cannot reasonably remove, such foreign material than to cover it with boards. The emergency is one which is common to every street in the village or city, and which the corporation is powerless to combat. Usually it lasts but a few days, and the corporate authorities may await without negligence a change of temperature which will remove the danger.
Both of these emergencies are shown to have existed in the present case, and as to both the learned trial judge gave to the defendant the full benefit of the rule as we have stated it. But there were further facts. The sidewalk along Buena Vista avenue, where it passed an unoccupied lot, was bounded on its inner line by an unprotected bank of earth. For two years the action of rain and frost had thrown upon the walk sand and gravel and stones from the bank, until the flagging was entirely covered by it, and a new and sloping grade substituted *207
for the one adopted. The sand on the inner line was about eight inches in depth, growing less toward the curb where it was about one inch. Mixed in with this were stones some of which were as large as apples. When the winter came this walk was covered with snow which was never removed. Before the accident the snowfall had been heavy, but it was evidently not recent, for upon this walk it had been trampled down by travel, and by freezing and thawing converted into ice. These facts tended to establish negligence on the part of the city. If the slope of the walk was not dangerous in the summer weather, it might become so when coated with ice in the winter, and those having the care of the highway were very blind if they did not foresee the possible danger. No one, however, appears to have been injured by it when simply in this condition, for the reason probably that sand was continually washed upon it from the adjoining bank. But this protection disappeared before the plaintiff was injured. On the night preceding, rain fell which washed the sand from the ice, and then froze, covering everything with a new surface, and making the whole city slippery and dangerous for travel. That was just as true of walks cleaned as of those not cleaned, and it may even be the fact that the latter when paved, became by reason of their smoothness, the most dangerous of all. That such was the situation was very strongly shown by the conduct of plaintiff himself. He boarded in a house adjoining the vacant lot of which we have spoken, and standing so far above the grade of the street that ten steps led down to the sidewalk in front. On coming out in the morning with a companion and observing the situation he hesitated to come down his own steps to the sidewalk, although clear of snow as we may fairly assume, and chose rather, as a measure of safety, to take another route. He went through the picket fence at the side, and on to the vacant lot which was covered with snow, and thence down to the sidewalk which he essayed to cross, intending to go to his work through the middle of the street and on the roadway. His conduct pictures the situation perfectly. *208
He stepped on the new ice surface, just formed, and for the existence of which the city was in no respect responsible. Had that been the whole of the case a recovery would have been impossible. But this new ice formed on a slope, having a fall toward the curb of six or seven inches in ten feet, which the city had negligently suffered to remain. If that slope was one concurring cause of the fall without which the accident would not have happened, the city is liable. We have stated the rule to be that "when two causes combine to produce an injury to a traveler upon a highway, both of which are in their nature proximate, the one being a culpable defect in a highway, and the other some occurrence for which neither party is responsible, the municipality is liable, provided the injury would not have been sustained, but for such defect. (Ring v. City of Cohoes,
The judgment should be reversed and a new trial granted, costs to abide event.
All concur except ANDREWS, J., not voting.
Judgment reversed.