Opinion
January 15, 1945.
Action to recover damages for wrongful death. Judgment reversed on the law and the facts and a new trial granted, with costs to abide the event. The court erred in its charge at folio 759, which error was prejudicial, misleading and confusing and was duly excepted to. It also erred in the refusal to charge at folio 773. It likewise erred in its refusal to charge at folio 775, which ruling was duly excepted to. The request was that there was no duty imposed by law on the appellant to remove the snow and ice. This request should have been granted. ( Connolly v. Bursch, 149 App. Div. 772.) The court erroneously assumed that it had covered the subject matter of the request in its main charge. The main charge did not make clear that under the proof in this case the appellant could not be held liable for his acts in removing the recently fallen snow from the sidewalk. ( Connolly v. Bursch, supra.) The charge did not make pointedly clear that the appellant could only be held liable for creating a dangerous condition in respect of the old ice as a consequence of his negligently removing a portion of the ice or leaving pieces of the ice on the sidewalk, with the consequence that such dangerous condition caused the plaintiff's decedent to fall. ( Rohling v. Eich, 23 App. Div. 179. ) Close, P.J., Hagarty, Carswell, Adel and Lewis, JJ., concur.