Opinion
January 12, 1912.
A. Oscar Bernstien [ Fred G.H. Strohsall with him on the brief], for the appellant.
James D. Bell and Frank Julian Price, for the respondent.
This is plaintiff's appeal from a judgment of the Municipal Court that gives judgment for the defendant on the merits dismissing the complaint. The action is for negligence to recover damages for injury to a horse. Shortly after 5 P.M. on February 1, 1910, the plaintiff's servant drove the plaintiff's horse drawing a wagon into a city street where the horse stepped upon a ridge of ice, slipped, fell and received such injuries that he was shot for humane reasons. Theretofore contractors with the defendant had set up a sounding plant in this street for the purpose of finding rock bottom. The work of sounding involved the use of an engine connected by pipe or hose with a hydrant on that block. The contractors worked under a permit issued by the city, with the supervision of the city's water department. In the work 20 gallons of water a minute were drawn from the hydrant, of which 85 or 90 per centum was discharged onto the surface of the street and suffered to flow down it. The work began on January 4, 1910, was continued steadily for 16 hours a day until January 22, 1910. The evidence for the plaintiff is that soon after the work was begun the water in the street froze into thin layers of ice, upon which were imposed successive layers as the water was discharged from day to day. The street became a mass of ice from curb to curb. The ice at some points was even with the curbs, and at others the water had run over the curbs and frozen upon the sidewalks. The block in question at the time of the accident was thick with ice and was very slippery and uneven. The mean temperature of that January was 29.32 degrees Fahrenheit. The case was tried before the court without a jury. At the close of the evidence the plaintiff moved for judgment and the defendant for a dismissal.
I think that the judgment should be reversed and that a new trial should be ordered. The case is not in the category of the so-called "snow and ice cases," in that the cause of this accumulation was not natural but artificial. ( Allison v. Village of Middletown, 101 N.Y. 667; Corbett v. City of Troy, 6 N.Y. Supp. 381; Thuringer v. N.Y.C. H.R.R.R. Co., 71 Hun, 526; Gillrie v. City of Lockport, 122 N.Y. 403; Stone v. Inhabitants of Hubbardston, 100 Mass. 49; 3 Abb. Mun. Corp. 2298.) Lichtenstein v. Mayor ( 159 N.Y. 500), cited by the learned counsel for the respondent, may be discriminated in that the accumulation of snow and ice was that which originally had fallen or formed naturally, while the ice in the case at bar was, as I have pointed out, formed artificially. And such, too, is the line of discrimination to be drawn against the application of Crawford v. City of New York ( 68 App. Div. 107), also cited by the learned counsel. VAN BRUNT, P.J., to whose concurring opinion we are particularly cited, denies liability where the streets "are simply rendered slippery and uneven because of the action of the elements." The city, under its permit and by work done under its supervision, suffered its contractor to place an obstacle to travel in its public street. In Stone v. Inhabitants of Hubbardston ( supra) GRAY, J., for the court, says: "But if ice, by reason of constant or repeated flowing of water, trampling of passengers or any other cause, assumes such a shape as to form an obstacle to travel, the fact that it is also slippery does not make it the less a defect in the highway." Aside from the participation of the city, there is evidence sufficient to justify a finding of constructive notice, and there is testimony of actual notice under the rule of Rehberg v. Mayor, etc. ( 91 N.Y. 137). If the city had notice of the original obstruction, which was made under its permit, until the obstruction was removed its duty of inspection was continuous, "and it is entitled to no notice of its condition." ( Tabor v. City of Buffalo, 136 App. Div. 261, and authorities cited.)
I think that the plaintiff fulfilled his obligation of due care. He was an experienced driver. He had first passed along other blocks of that street where travel was safe. There was no warning or signal of obstruction or of danger in this particular block. He drove the horse at a walk, and there is no proof that points to any lack of care in management. Although the day was ending, he could see his way. It is true that the plaintiff noticed it was in bad condition — "it was kind of dirty and you could not tell it from asphalt." Possibly the comparative darkness dimmed his sight, yet he would have had the right to drive carefully even in the darkness of night with reliance upon the belief that the city had performed its duty and that the street was not unsafe. (4 Dillon Mun. Corp. [5th ed.] § 1698.) He drove on this block but 75 feet before the accident, and in that space his horse had not slipped. The horse had been shod but the day before.
The judgment must be reversed and a new trial must be ordered, costs to abide the event.
BURR, THOMAS, WOODWARD and RICH, JJ., concurred.
Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.