Foley v. City of New York

Full title: ANN FOLEY, Respondent, v . THE CITY OF NEW YORK, Appellant

Court: Appellate Division of the Supreme Court of New York, First Department

Date published: Jun 1, 1904

95 App. Div. 374 (N.Y. App. Div. 1904)

Opinion

June, 1904.

Terence Farley, for the appellant.

S. Stanwood Menken, for the respondent.

McLAUGHLIN, J.:

This is the ordinary action to recover damages for injuries sustained by falling on an icy sidewalk. The plaintiff had a verdict and defendant appeals.

The plaintiff testified that at the time she fell she was proceeding carefully, and whether or not she was guilty of contributory negligence, upon the evidence at the close of the case, was clearly a question for the jury, but we are unable to find in the record any evidence which justified a finding that the defendant was in any respect negligent.

The obligation resting upon a municipal corporation to remove accumulations of snow and ice from its sidewalks is not an absolute but a qualified one. It is bound to keep the streets and sidewalks in a reasonably safe condition for public travel, and for the non-performance of that duty, in case of injury, it is responsible, but it is not bound to perform impossibilities or do unreasonable things. In a great city like New York, with its hundreds of miles of sidewalks, in a climate as changeable as it is there, it is not difficult to see that there are times when it is nearly if not quite impossible for it to keep its sidewalks entirely clear of snow and ice. In certain portions of the city, when a snow storm occurs, the snow is quickly packed down by persons traveling upon the sidewalks, and if the temperature is below the freezing point, ice soon forms and adheres to the walk, which renders the process of removal not only difficult, but many times attended with no little delay. It cannot be said to be negligent, immediately following a fall of snow, because it does not proceed at once to clear the sidewalks of snow and ice, because it is the duty of abutting property owners to do that work, and it has a right to rely for a reasonable time upon the assumption that they will perform the obligation which the law casts upon them. ( Crawford v. City of New York, 68 App. Div. 107; S.C. affd., 174 N.Y. 518.)

Thus it was held, in Staley v. Mayor ( 37 App. Div. 598), that the city was not liable where the plaintiff sustained an injury by falling on an icy sidewalk on the 30th of December, 1894. There it appeared that snow commenced to fall on the evening of the twenty-sixth and continued until late that night, when it turned into rain, which continued until noon the following day, when it commenced to snow again, and continued until half-past one of that day. Then it became quite cold and froze hard, which continued until the thirty-first. This case was followed by Hawkins v. Mayor ( 54 App. Div. 258), where it appeared that snow commenced to fall on the 22d of December, 1896, and continued substantially until late in the afternoon of the twenty-third. Plaintiff was injured on the twenty-fifth, and it was there held that the city was not liable. In the recent case of Crawford v. City of New York ( supra) we held the city was not liable. There snow fell continuously from the 24th to the 30th of November, 1898. Plaintiff was injured on the first of December following. During the storm the temperature was but little above the freezing point.

Applying the rule laid down in these cases and many others which might be cited to the facts in this case it will at once become apparent that the evidence did not justify a finding that the defendant was negligent, and for that reason the complaint should have been dismissed at the close of plaintiff's case, or the verdict of the jury set aside. The facts are not disputed. The plaintiff herself testified that there was snow on the street at the time; that she could not tell how deep it was; that some parts of it were "pretty high," and by "pretty high" she meant six or eight inches. Her witness Draper testified that he had official charge of the weather bureau at Central Park, and was familiar with the condition of the weather from the 16th to the 23d of February, 1902; that on the seventeenth of February there was a very severe snow storm, in which ten inches of snow fell; that the temperature during that and the two succeeding days was below the freezing point; that on the twentieth, at five P.M., it was two degrees above, but all the rest of the day it was below; that on the twenty-first, after six P.M. it was above, and all the rest of the day below; that it snowed from seven A.M. on the twenty-first to six A.M. on the twenty-second, during which time over four inches of snow fell; that on the twenty-second the average temperature was thirty-three and six-tenths degrees — the highest being forty-one degrees and the lowest twenty-six degrees; that on the twenty-third the average temperature was thirty-three and six-tenths degrees — the highest being forty-one degrees and the lowest twenty-seven degrees. Plaintiff was injured about three o'clock in the afternoon of the twenty-third, and after the last storm had ceased only one day and a portion of another had intervened, and during a portion of that time the temperature was below the freezing point. Under such circumstances, the city cannot be said to have been negligent because it did not remove the snow which fell on the twenty-first and twenty-second, because it not only had a right to rely, for a reasonable time, upon the fact that the abutting property owners would do the work ( Hawkins v. Mayor, supra), but also to wait a reasonable time for the temperature to moderate. ( Taylor v. City of Yonkers, 105 N.Y. 206.) But it is suggested that the city was negligent because it did not remove the snow which fell on the seventeenth, and that the jury could predicate a liability upon that fact. To this suggestion, it seems to me, there are two answers: First, upon the conceded facts, I do not think it can be said — considering the amount of snow which fell and the condition of the temperature immediately following — that the city was negligent because it did not remove all of the snow before the plaintiff was injured. The storm was a severe one, and during the seventeenth, eighteenth and nineteenth the temperature was below the freezing point, and it was also below the freezing point all of the twentieth and twenty-first, except at short intervals on each of those days. On the twenty-first there was another storm, which continued until the morning of the twenty-second. There was, therefore, only the twenty-second and until three o'clock of the afternoon of the twenty-third when the defendant could have cleared the sidewalk of all the snow and ice upon it, and under the authorities cited it cannot be said to have been negligent because it did not do this work within that time. But if it be assumed that the defendant was negligent because it did not remove the snow which fell during the storm of the seventeenth, it does not aid the plaintiff, because there is no evidence in the record which justifies a finding that the snow which fell and the ice which formed at this time were concurring causes of the accident, and unless she could establish that fact she was not entitled to recover under the principle laid down in Taylor v. City of Yonkers ( supra). There, adjoining a sidewalk on one of the defendant's streets was a bank of earth. For two years preceding the accident the action of rain and frost had thrown upon the walk sand, gravel and stones from the bank until the flagging was entirely covered, the deposit sloping about one inch to the foot from the outer edge of the walk to the curb. Snow and ice accumulated upon this slope, and it was claimed that the defendant was negligent because it had allowed the sand, gravel and stones to remain on the walk, and if it had not done so the plaintiff would not have been injured. The court, in reversing a judgment in favor of the plaintiff, in disposing of this contention, said: "Now, the jury were plainly charged that the new ice recently formed furnished no ground of negligence on the part of the city, and it necessarily followed that the jury found the slope of the walk to have been a concurrent cause, without which the accident would not have happened. The only remaining inquiry is whether there were any facts which permitted that inference or whether there were none and the conclusion was mere guess and speculation. The fact proved was that the plaintiff slipped on the new ice lying on a slope. The inference, it is claimed, is natural and logical and sustained by common observation and experience that both of the conditions entered into the accident as proximate causes. But no one can say that if the new ice had spread over a level the plaintiff would not have fallen, and there is nothing in the case pointing to the slope as a concurrent cause beyond the bare fact that it existed, and so nothing to redeem the inference sought from the domain of mere guess and speculation."

Here the plaintiff slipped and fell on the snow and ice which accumulated upon the walk during the storm which occurred on the twenty-first and twenty-second, and as to this, as we have already said, the defendant cannot be said to have been negligent because it did not remove it. Whether the snow which fell on the seventeenth, if it be assumed that the defendant was liable because it had not removed that, contributed to her fall, the jury could not by any possibility tell. To permit them to attempt to do so was to permit them to speculate and guess, and a verdict based upon any such conclusion cannot stand.

The judgment and order appealed from, therefore, must be reversed and a new trial ordered, with costs to appellant to abide event.

PATTERSON and INGRAHAM, JJ., concurred; LAUGHLIN, J., concurred in result; O'BRIEN, J., dissented.

O'BRIEN, J. (dissenting):

A question of fact was fairly presented as to whether the plaintiff fell and was injured by reason of ice which had been permitted to remain on the sidewalk for a week or whether the snow storm which began on February twenty-first and ended February twenty-second, the day before the accident, was the proximate cause of her fall and injury. In the latter case the city would not be liable under our decisions in Hawkins v. Mayor ( 54 App. Div. 258) and Crawford v. City of New York (68 id. 107; affd., 174 N.Y. 518). Therein it was held that the city is entitled to wait a reasonable time for abutting owners to remove snow and ice from the sidewalk in front of their houses, and that the lapse of less than forty-eight hours is not sufficient, as matter of law, to establish constructive notice to the municipal authorities of the dangerous condition of a sidewalk resulting from unremoved snow and ice.

Here, however, it was conceded not only that "there was snow and ice on that street for a week previous," but when the next witness testified that she noticed the condition of the sidewalk, the court interposed and thus formulated the concession, the defendant making no objection: "The Court: They (the city authorities) have admitted it was in that condition for a week." And in addition it was testified that there was a heavy snow storm on February seventeenth, when ten inches of snow fell, and that rough, glassy lumps of ice and snow, four or five inches thick, remained thereafter on the sidewalk, covering it from the entrance to the curb, until the day after the accident; and that although there was a lighter snow storm beginning on February twenty-first when three and one-eighth inches of snow fell, and ending February twenty-second, the day prior to the accident, when an inch of snow fell, "the condition of the sidewalk was just about the same after that storm as it was before."

Upon the concession and the evidence which tended to support it, therefore, the jury would have been justified in drawing the inference that it was the old ice and lumps of frozen snow which had been permitted to remain on the sidewalk for a week that was the cause of the plaintiff's injury. I do not understand that any of the cases have gone to the extent of absolving the city entirely from responsibility for injuries resulting from snow and ice upon a sidewalk which, because not removed, has been for a week a menace to the public.

It is suggested that as the temperature was below freezing most of the week the city was freed from the obligation which otherwise might have rested upon it if the weather had been such as to facilitate removing the ice from the sidewalk. This suggestion, however, does not seem to me entitled to the weight which my associates are inclined to give it, because I understand the real point to be whether the city, by reason of the length of time during which the sidewalk was allowed to remain in a dangerous condition, had actual or constructive notice thereof and a reasonable opportunity to remove the snow and ice. If the city were bound within a week to remove the danger to the public, then, as the coldness of the weather would not have rendered it either impossible or impracticable to discharge that duty, the low temperature would afford no excuse.

It seems to me that if, upon any state of facts, the city could be held liable for injuries received by a pedestrian as the result of a dangerous accumulation of snow and ice upon a sidewalk, permitted to remain beyond a reasonable time, then, upon the evidence here presented, there was a question for the jury.

Upon the ground, therefore, that there was sufficient evidence to go to the jury and upon which their verdict could rest, I dissent from the conclusion reached by the majority of the court and think that the judgment should be affirmed.

Judgment and order reversed, new trial ordered, costs to appellant to abide event.