103 N.Y.S. 222 | N.Y. App. Term. | 1907
Plaintiff recovered judgment against the defendant for $500 damages for personal injuries received as the result of a fall 'upon the sidewalk. The accident occurred on February 11, 1906, while plaintiff was walking through 115th street between St. Nich-las and Lenox avenues. Plaintiff testified that she slipped on the ice, which was covered with snow, and fell on the sidewalk opp-site No. 129 West 115th street. The snow was trampled down firmly. T e sidewalk had but one row of flags, and plaintiff kept strictly to the flags. There was hard snow all along the way, but she saw no ice there. She testified, further, that the place where she fell seemed to slip from under her feet, as if there were a soft flurry of snow on top of ice.
The weight to be attached to the plaintiff’s testimony as to the condition of the sidewalk is naturally lessened bv her statement that the evening was dark and cold, and that she did not k'Ow anything then about there being snow on top of the ice. Plaintiff’s physician lived
This witness is corroborated in the main by the police officer. These witnesses are not contradicted. If their version is correct, the sidewalk was not in such a condition as.to j'ustify any inference of negligent maintenance of the walk on the part of the city. In brief, the evidence shows that the plaintiff slipped on a small patch of ice which had formed after the rain of the 9th of February. The accident took place on the evening of the 11th,' a little more than two days after the rain had ceased. Under the circumstances we think it would be wrong to hold the city liable for the presence on the sidewalk of the ice upon which plaintiff slipped. Staley v. Mayor, 37 App. Div. 598, 56 N. Y. Supp. 237; Hawkins v. Mayor, 51 App. Div. 253, 66 N. Y. Supp. 623; Taylor v. City of Yonkers, 105 N. Y. 202, 11 N. E. 642, 59 Am. Rep. 492.
The judgment is reversed, and a new trial granted, with costs to appellant to abide the event. All concur.