Opinion
July Term, 1903.
L.P. Hancock, for the appellant.
Charles L. Feldman and Edward L. Jung, for the respondent.
The judgment and order should be reversed and a new trial granted, with costs to the appellant to abide event.
The action was brought to recover damages for injuries to plaintiff alleged to have been caused by the negligence of the defendant.
The injuries were received by falling upon a sidewalk on one of the defendant's streets. The walk was in a dangerous condition by reason of the accumulation of snow and ice thereon which it was claimed the city, defendant, was negligent in permitting to remain.
The verdict was evidently directed upon the ground that there was no proof of defendant's negligence. The absence of contributory negligence on plaintiff's part was clearly a question for the jury. Upon the evidence most favorable to the plaintiff the condition of the walk on March 22, 1901, from nine to ten o'clock A.M. when the accident happened, was as follows: The walk was ten and one-half feet wide and twenty-six feet long. It was laid on a grade from the street line to the curb line of one inch to the foot. It was constructed of planks running from the street line to the curb line. The walk was icy, slanting, uneven, with hills or hummocks of ice two or more inches high, and it was upon one of these hills or hummocks that the plaintiff slipped when she fell and received her injuries. The ice on the walk was three or four inches thick, excepting that part lying towards the street line, where near the building it had melted so it was not so thick. This condition of ice upon the walk had existed for a long time, practically all winter. Most of the ice had accumulated prior to March 12, 1901, ten days before the accident. There was evidence that some snow fell upon the ice on the walk the night before the accident, but the plaintiff's evidence was that the amount of snow was slight. It seems to us that there can be no doubt but that the city was guilty of negligence in permitting the walk in question to remain in the dangerous condition shown. There seems to have been no effort to keep the walk free from ice forming from snow allowed to accumulate upon the walk. There was a gross neglect as to the condition of the walk, and the condition had existed for a long time. We apprehend no authority can be found for the proposition that a city may be guilty of such negligence, and yet be free from liability resulting therefrom. In a recent case decided by this court, and now on appeal to the Court of Appeals, Scanlon v. Village of Weedsport ( 85 App. Div. 623), we permitted a recovery to stand upon facts very similar to these in this case. The plaintiff slipped upon a ridge of ice, which had resulted from the accumulation of snow upon the walk, and which had existed for some time. We have examined the cases cited by respondent's counsel and do not find any in conflict with the doctrine above stated, as applied in Scanlon v. Village of Weedsport ( supra). In the case of Harrington v. City of Buffalo ( 121 N.Y. 147) it was held that the duty to remove accumulations of ice and snow becomes imperative only when dangerous formations and obstacles have been created and notice of their existence has been received, or sufficient time has elapsed, to constitute constructive notice. The court suggested there just the rule we have here involved. It was further held that the obstruction in that case upon which the plaintiff fell resulted from a condition which arose the night before the accident, and as to which the city had neither actual nor constructive notice. It can hardly be claimed here as matter of law that the plaintiff's fall was caused in whole or even in part by any conditions arising the night before the accident. There was conflicting evidence as to the amount of snow which fell, and evidence was given in behalf of plaintiff which made it a question of fact for the jury whether any conditions arising during the night before the accident were even a contributing cause of the fall and consequent injuries.
The judgment and order should be reversed and a new trial granted, with costs to the appellant to abide event.
All concurred.
Judgment and order reversed and new trial ordered, with costs to the appellant to abide event.