Sidebilder
PDF
ePub

FIRST DEPARtment, July, 1904.

[Vol. 96. interest is not limited. The Greater New York charter went into effect on the 1st day of January, 1898 (§ 1611). This proceeding was instituted under the Consolidation Act and title vested while that act was in force. Therefore, the interest to which the claimants are entitled upon their awards is to be determined by that act. This has been settled and determined by this court and the Court of Appeals. (Matter of Mayor, 40 App. Div. 452; affd. on opinion below, 161 N. Y. 622; Matter of East 175th Street, 49 App. Div. 114; affd., 162 N. Y. 661.) The question is not now an open one and, therefore, the order appealed from upon these authorities must be affirmed.

The order appealed from must be affirmed, with ten dollars costs and disbursements.

PATTERSON, O'BRIEN and HATCH, JJ., concurred; VAN BRUnt, P. J., dissented.

Order affirmed, with ten dollars costs and disbursements.

Cases

DETERMINED IN THE

FOURTH DEPARTMENT

IN THE

APPELLATE DIVISION,

July, 1904.

HERBERT ROGERS, Respondent, v. THE CITY OF ROME, Appellant. Negligence-injury from a fall on an icy sidewalk — when negligence is not shown on the part of the city — when contributory negligence exists.

In an action brought to recover damages for personal injuries, it appeared that while the plaintiff was walking along a sidewalk in the defendant city on a December evening, he slipped on an accumulation of ice and snow extending along the center of the sidewalk for a considerable distance, and fell, sustaining serious injuries. The top of the accumulation of ice and snow was rough and uneven, and it had been allowed to remain on the walk for several days prior to the accident.

On the trial of the action it appeared that the sidewalk, which was located in front of one of the principal stores of the city, was twenty feet wide and composed of flagstones. It was level and perfect in its construction, and at the time in question it and the adjacent premises were lighted by electric lights. The accumulation of snow and ice varied, according to the testimony of different witnesses, from one and one-half to four or five inches in thickness, and from two and one-half to seven feet in width, sloping gradually to either side, thus leaving upon both sides of the obstruction a clear space of about six feet. This clear space was, however, in a slippery condition because of a thin film of ice which had formed upon the same. On the night prior to the accident and on the day when it occurred, rain had fallen which had frozen on all the sidewalks of the city. On the morning and also on the afternoon of the day of the accident, sawdust and ashes were sprinkled over all the ice upon the sidewalk. During the afternoon of the day of the accident the temperature was below the freezing point and remained so up to the time of the accident.

Held, that a finding by the jury that the defendant city was guilty of negligence was contrary to and against the weight of the evidence;

That the plaintiff had failed to show that he was free from contributory negligence, it appearing that while walking over the sidewalk, he knew and fully

FOURTH DEPARTMENT, JULY, 1904.

[Vol. 96. appreciated the condition of that part of the walk over which he was passing, but apparently made no effort to ascertain whether the same condition existed over the entire surface thereof and chose to pick his way along upon the ridge when he could readily have walked upon the unobstructed part of the walk and have avoided the accident which befell him.

APPEAL by the defendant, The City of Rome, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Oneida on the 28th day of October, 1903, upon the verdict of a jury for $5,000, and also from an order entered in said clerk's office on the 4th day of November, 1903, denying the defendant's motion for a new trial made upon the minutes.

The action was commenced on the 9th day of June, 1903, to recover damages for injuries sustained by the plaintiff by falling upon one of the defendant's sidewalks, alleged to have been caused through its negligence and without fault or negligence upon the part of the plaintiff.

M. J. Larkin, for the appellant.

Howard C. Wiggins, for the respondent.

MCLENNAN, P. J.:

The plaintiff sustained the injuries of which he complains (which concededly were serious) at about seven-fifteen o'clock in the evening on December 22, 1902, by slipping and falling upon the sidewalk on the northerly side of West Dominick street, one of the principal streets in the defendant city. The accident occurred in front of Russel & Waller's store, one of the chief business places in the city. At the place of the accident, and extending for a considerable distance in either direction, the sidewalk was twenty feet wide, was composed of solid flagstone, and was level and perfect in its construction. At the time in question the sidewalk and adjacent premises were lighted by electric lights in the usual manner. There was upon the sidewalk at the place of the accident an accumulation of ice and snow which extended along its center for a considerable distance in either direction. Such accumulation was described by different witnesses as being from one and one-half to four or five inches in thickness and from two and one-half to seven feet in

App. Div.]

FOURTH DEPARTMENT, JULY, 1904.

width, sloping gradually to either side, concededly leaving a space of about six feet upon either side of such sidewalk which was not interfered with by the obstruction of which the plaintiff complains. The accumulation of ice and snow was rough and uneven on the top, and it had been allowed to remain on the walk for several days prior to the accident. At that time, by reason of the weather conditions prevailing in the city, all the sidewalks were slippery, and the space upon either side of the obstruction complained of was in that condition because of a thin film of ice which had formed over the same. Between seven A. M. on December twenty-first and seven A. M. on December 22, 1902, sixty one-hundredths of an inch of rain had fallen; it also rained on the twenty-second, and the temperature was such as to cause such rain to form into ice upon all the sidewalks of the city. It is apparent that the conditions were such in the defendant city as that immediately preceding the accident the sidewalks were unavoidably icy and slippery. On the morning of the day of the accident sawdust and ashes were sprinkled over all the ice upon the sidewalk in question, and again in the afternoon, between three and six o'clock, the sidewalk in question was thoroughly sprinkled with such material. It appears from the evidence that prior to the accident the snow and ice had usually been removed from the walk down to the flagging, but that upon the occasion in question it had been allowed to accumulate to the extent indicated, the precaution being taken to sprinkle sawdust and ashes upon it, and that the condition which actually existed was known to or ought to have been known by the defendant's officials in the exercise of ordinary care and prudence.

Under the circumstances disclosed by the evidence in this case we think the plaintiff failed to establish that the defendant was guilty of actionable negligence. If upon such evidence the defendant could be held liable, in effect the duty is imposed upon a municipality to keep its sidewalks free from ice and snow under any and all circumstances. In the case at bar the obstruction complained of was almost the slightest that could be imagined under the conditions prevailing, and it was remedied by the common method of sprinkling sawdust and ashes upon it. The obstruction complained of was such as would ordinarily exist under the conditions prevailing at the time, and was so slight, only sloping about a half inch

FOURTH DEPARTMENT, JULY, 1904.

[Vol. 96. to the foot from the center in either direction, that it could hardly be discovered except by actual measurement, and from the edge of such slope upon either side there was a clear and unobstructed way for any person desiring to pass over such walk. When it is considered that such walk was sprinkled with sawdust and ashes in the morning and again almost immediately preceding the time when the plaintiff passed over it, we think the defendant was not negligent in allowing it to remain and be in that condition. We do not agree to the proposition that the leaving of such a small area of snow and ice, of the character described by the witnesses, upon the walk in question, under the circumstances disclosed by the evidence in this case, establishes negligence on the part of the defendant, nor do we interpret the authorities cited and relied upon by respondent's counsel as establishing such doctrine.

In the case of Klaus v. City of Buffalo (86 App. Div. 221) the walk in question, as described in the opinion of this court, was "ten and one-half feet wide, * * icy, slanting, uneven, with hills

*

*

or hummocks of ice two or more inches high. * * 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 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."

In the case from which we have just quoted, the evidence contained in the record upon appeal discloses that the building in front of which the danger existed was vacant and unoccupied, and that no one attempted to clean the snow or ice off the walk at any time during the winter prior to the accident, while in the case at bar the adjoining property was occupied by merchants who conducted a store therein, and who, the evidence shows, attempted to keep the walk free from ice and snow, and on account of the small area in question being frozen to the flagging so that it could not with reasonable care be removed, it appears without contradiction that shortly before the accident to plaintiff, and at least once earlier in

« ForrigeFortsett »