McDermott v. City of Buffalo

153 A.D. 935, 138 N.Y.S. 1127

Opinion

Foote, J. (dissenting):

There was not sufficient evidence of defendant’s negligence to" entitle plaintiff to have that question left to the jury. The weather conditions prior to the day of the accident were not shown. The uneven condition of the icy surface of the walk was not shown to have been due to neglect. It may have been common to all or many of the walks in the city at that time because of weather conditions, and in spite of due diligence to keep them clean. (Rogers v. City of Rome, 96 App. Div. 427; Hatch v. City of Emira, 142 id. 174; Harrington v. City of Buffalo, 121 N. Y.