Opinion
November, 1912.
Judgment and order reversed and new trial granted, with costs to appellant to abide event. Held, that the trial court erred in holding that the plaintiff was guilty of contributory negligence as matter of law; that the evidence was sufficient to present a question of fact in that regard as well as upon the question of defendant's negligence. All concurred, except Foote, J., who dissented in a memorandum.
There was not sufficient evidence of defendant's negligence to entitle plaintiff to have that question left to the jury. The weather conditions prior to the day of the accident were not shown. The uneven condition of the icy surface of the walk was not shown to have been due to neglect. It may have been common to all or many of the walks in the city at that time because of weather conditions, and in spite of due diligence to keep them clean. ( Rogers v. City of Rome, 96 App. Div. 427; Hatch v. City of Elmira, 142 id. 174; Harrington v. City of Buffalo, 121 N.Y. 147.)