Osborne v. Village of North Tarrytown

Full title: MARGARET J. OSBORNE, Respondent, v . VILLAGE OF NORTH TARRYTOWN, Appellant

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

Date published: Nov 23, 1917

180 App. Div. 224 (N.Y. App. Div. 1917)

167 N.Y.S. 681

Opinion

November 23, 1917.

John J. Sinnott, for the appellant.

George C. Andrews, for the respondent.

PUTNAM, J.:

Plaintiff sued to recover for a fall and fracture of the left wrist on the 29th day of September, 1916, charging negligence of the village of North Tarrytown in permitting wet leaves to lie upon the sidewalk of Washington street in that village.

Plaintiff daily used this walk, overhung by shade trees along both sides. Leaves from these trees had remained on this sidewalk for about ten days, in some parts to a depth of seven inches. About noon of the day of the accident rain began. Plaintiff slipped and fell about three P.M.

May negligence be attributed to the village for failing to remove these leaves?

Defendant is not an insurer of the safety of persons traveling its streets, nor is it bound to furnish an absolutely safe and proper highway under all circumstances. ( Hubbell v. City of Yonkers, 104 N.Y. 434; Dillon Mun. Corp. [5th ed.] § 1697.) Plaintiff admitted that, where she fell, the sidewalk was in good condition. There was no ridge, unevenness or obstruction. There were simply autumn leaves, which in and of themselves were not dangerous. Something more than a slippery sidewalk must be shown to enable one suffering from it to cast the burden of compensation upon the city. ( Kinney v. City of Troy, 108 N.Y. 567. ) No liability attaches as matter of course for falls upon slippery pavements. ( O'Reilly v. City of Syracuse, 49 App. Div. 538. ) Here no fact was shown indicating negligence by the village, except that there were leaves on the sidewalk, which were made wet by a rainstorm on the day of the accident. In the fall of the year, the time for storms and winds, every shaded street may become more or less covered with leaves. Such a condition of its streets cannot be prevented.

A village is not liable for an injury from wet leaves, where the sidewalk had no defect, and nothing indicating negligence appeared, beyond a walk made slippery by leaves moistened by one or two hours of rain.

The judgment and order of the County Court of Westchester county should, therefore, be reversed, and the complaint dismissed, with costs.

JENKS, P.J., THOMAS, RICH and BLACKMAR, JJ., concurred.

Judgment and order of the County Court of Westchester county reversed, and complaint unanimously dismissed, with costs.