22 A.D. 186 | N.Y. App. Div. | 1897
The obstruction which it is claimed was the cause of the plaintiff’s injury and which existed upon the sidewalk in question, was formed by water dripping' from the eaves of the bay window adjacent to the
Such ridge was formed entirely of ice, frozen fast to the walk, and evidently the product of slow growth. During the ten days previous to the accident there had been no thawing weather that would loosen the ice down to the walk and allow it to be easily removed. Experience teaches us all that, until such a thaw came, such ice could be removed only by being chopped away. And it is also apparent that, if similar weather continued, snow upon the bay-window roof would continue to melt, owing to the warmth within, and the ridge of ice would continue to increase by the drippings from above it.
Can it be said, as matter of law, that reasonable care to keep its sidewalk in a safe condition does -not require the village authorities to take notice of and remove such an obstruction %
It is claimed that the case, of Kaveny v. City of Troy (108 N. Y. 571) has so decided. Though some expressions are used in the opinion in that case, which would seem to go to the extent of holding that a village is not responsible for the ice which forms upon its walks by the drip of a roof, yet the rule of law therein stated does not, in my opinion, go to that extent. In that case, the day before the accident, snow fell to the depth of several inches and then turned into rain and froze. This covered the place of the accident with a recent sheeting of ice, which extended over the whole city, and whatever had been the condition of the walk under this new covering, it could not be said that the accident was not caused by the recent sheet of ice, for which the city could not be held responsible. The facts of that case are thus very difEerent from the facts of the one before us. Here, although there had been a slight fall of snow just before the accident, it could not be claimed beyond all doubt that it, and not the sloping ridge of ice, was the cause of
In Weston v. City of Troy (139 N. Y. 281) a ridge of ice formed by water overflowing from a gutter on an adjacent roof and freezing upon the walk was said to create a case of neglect upon the part of the city. (See, also, Goff v. Village of Little Falls, 20 N. Y. Supp. 175.)
The question as to defendant’s negligence and as to plaintiff’s freedom from contributory negligence should both have been left to the jury.
For these reasons the judgment entered upon the nonsuit should :be reversed, and a new trial granted, costs to abide the event.
All concurred, except Herrick, J., dissenting.
Judgment reversed, and a new trial granted, costs to abide the event.