McAuley v. United Cigar Stores Co. of America, Inc.

204 A.D. 356, 198 N.Y.S. 154, 1923 N.Y. App. Div. LEXIS 9470

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 9, 1923
• Status: Published

Opinion

Finch, J.:

The action was brought to recover damages for personal injuries sustained by the respondent in having fallen at the entrance to one of appellant’s stores as he was leaving the same after making a purchase therein, by reason of an accumulation of snow and ice at such entrance.

According to the records of the Weather Bureau, it had been snowing all day and up until ten-fifty p. m. and continued sleeting thereafter, with a high wind blowing all the time. The accident happened at about eleven p. m., at which time there was an accumulation of snow and ice in front of the defendant’s store, presenting an uneven, hummocky surface, made so by the feet of the persons passing in and out of the store. There is some testimony to the effect that this condition was called to the attention of an employee of the defendant between five and six o’clock p. m. of the same day. The testimony of the plaintiff is that this was a very heavy snowstorm and that the snow was deep enough “ to go up on your shins in some places; ” that it had stopped snowing between five and six o’clock but that the sidewalks were not cleared at the time of the accident; that the wind was blowing pretty strong and it was cold and that the entrance to this store is particularly exposed to the wind — the plaintiff testifying: “It is one of the windiest corners. * * * I say there is an immense wind whenever there is any blowing at all, because it is an open, wide street, and it comes from three points; it comes from the north and from the east and from the south and blows into that unprotected angle into the door.” Manifestly, it would be useless to attempt to clear away the snow under these conditions as the drifting of the snow continued. In addition, even if the storm had ceased entirely at five o’clock in the afternoon, not sufficient time elapsed between that time, when outdoor labor customarily ceases work for the day, and between ten and eleven o’clock the same evening, to charge negligence in failing to clear off snow and ice, even though within the building line. To lay down so strict a rule of conduct for the removal of snow and ice would be impracticable. (Rusk v. Manhattan R. Co., 46 App. Div. 100; Kelly v. Manhattan R. Co., 112 N. Y. 443.)

It follows that the judgment and order should be reversed, with costs, and the complaint dismissed, with costs.

Clarke, P. J., Smith, Merrell and McAvoy, JJ., concur.

Judgment and order reversed, with costs, and complaint dismissed, with costs.