O'Keeffe v. Mayor of New York

29 A.D. 524

Opinions

Ingraham, J.:

The plaintiff sustained, an injury from a fall on the northerly side of One Hundred and Forty-fifth street, from thirty-five to forty-five feet east of the corner of Amsterdam avenue and One Hundred and Forty-fifth street, on February 2, 1895 ; and.to recover for the damages sustained by that fall he has brought this action against the city of New York. The locality in cpiestion is largely unimproved. The northeast corner of One Hundred and Forty-fifth street and Amsterdam avenue, extending 100 feet upon One Hundred and Forty-fifth street, was vacant property, only occupied by a small shanty on the corner. The sidewalk was not flagged over its entire width, there being a strip of flagging in the middle of the sidewalk about four feet wide, with dirt on each side. There was some evidence that these flags were not entirely level, but the recovery was not based upon any insufficiency in the flagging, and the learned trial judge expressly charged the jury that there was no evidence that the sidewalk upon which the plaintiff fell was improperly constructed. The right of the plaintiff to recover must, therefore, depend upon the fact that the defendant had been negligent in allowing the sidewalk to become dangerous by reason of an accumulation of ice and snow thereupon, and that by reason of such negligence the plaintiff sustained the injury. While the plaintiff testified that the snow upon this sidewalk had not been removed during the winter, the person who occupied the shanty as an express office upon the property in question testified that his men cleaned the walk after every snow storm and kept it in as good condition as it could be kept; that the snow and ice were taken off if possible, but, if ice on it had become hard, ashes were put upon it. The police officer upon this post was called by the plaintiff and testified that people traveling over the snow upon this sidewalk trod it down so that it became hard, rough and uneven; that the expressman who occupied the shanty on the corner used to clean a pathway along these flags 100 feet in length, and that on the day of the accident there were ice and snow upon the sidewalk where the people had trampled it while passing over it. It would appear from the evidence that on the morning of this accident there was upon this strip of flagging in the middle of the sidewalk more or less ice which had been caused by the trampling down of snow which had subsequently frozen, and that this condition of the sidewalk had continued for some time, probably some weeks, before the accident. The plaintiff was in the habit of using this sidewalk daily and was aware of its condition at the time. It was also proved that, during the month.of January, snow fell on several days, and that, as is usual in winter weather in this latitude, there were days of frost, alternating with days on which the temperature was above freezing, there having been several days of warm weather prior to January twenty-seventh; and that on that day all the snow and ice had disappeared. On the twenty-eighth of January it commenced snowing at nine o’clock in the evening and continued until the next day, when three and one-half inches of snow had fallen. On February first, the day before the accident, the temperature was quite high, being as high as thirty-nine or forty degrees, and it was a clear, bright day. This temperature was sufficient to melt snow and ice and produce a thaw; but on the night of February first the temperature fell to twenty-five degrees, and early in the morning, about half-past six, it commenced to snow, and continued snowing until half-past two, during which time between two and four inches of snow fell.

On the morning of the second of February the plaintiff passed over this sidewalk and saw Officer Kelly on the corner and .asked him how it was that there was snow and ice on the sidewalk. Officer Kelly then stopped an ash cart and put ashes on this sidewalk. Subsequently, in the afternoon and after the snow had ceased, the plaintiff returned on the sidewalk, and when he was about thirty-five to forty-five feet from the corner of Amsterdam avenue, slipped and fell, which caused a fracture of the hip joint. The plaintiff testified that he slipped on the snow and fell on the top of this ice ; that he did not slip on slush; that as he fell he swept the snow off the ice and saw solid ice underneath ; that the ice under the snow was smooth ice; that when he looked back he saw the ice which had been covered’by the snow; that the place at which he slipped was smooth and even ; that he did not come in contact with any portion of the flagstone, but that the flagstone was .covered with ice, and the ice was covered with snow. As to the condi tion of the ice upon these flagstones prior to the first of February, it was undisputed that that ice was the result of snow which had fallen on the sidewalk and had been walked over and pressed down, and, subsequently, either from rain or the melting of the snow and freezing, had become ice. It was, as described by one witness, “ hobbly — not smooth exactly ; it had been snow; there had been times when there were two or three inches, I should judge, of ice; there was snow outside of where it had been trampled down, and this had frozen and become ice; there was a time when it was quite a deep path in the center, very irregular; the snow had been trampled irregularly.” It was undisputed that the snow upon the sidewalk prior to February first, was thus rough and uneven. The first of February' was a warm day, dining which snow and ice would melt quite rapidly, succeeded by a cold day on the second of February'. The result of this would be that the snow upon the sidewalk, which was not flagged and had not been cleaned, would melt and some water would be apt to flow upon the flagstones, and the snow that had been trampled down upon the sidewalk would melt, and thus water from the adjoining snow, and from the melted ice upon the sidewalk itself, would be apt to freeze at night, making clear, smooth ice. On the morning of the second of February it commenced to snow, and continued until a short time before the plaintiff was in jured, the evidence being that between three and four inches of snow fell. It was upon this smooth ice, with the snow on top of it, that the plaintiff’s own testimony shows that he fell. The court expressly charged the jury that if they' believed the plaintiff’s testimony that the ice upon which he fell was smooth and even, their verdict must be for the defendant. Yet this testimony of the plaintiff’s was the only testimony in the case as to where the plaintiff fell and as to the condition of the sidewalk at this particular place. lie swore that he slipped upon the snow, and that he noticed that the ice underneath the snow at the place where he fell was smooth and even ; and there was absolutely no testimony to show that the fall was caused by anything but the slipping upon the snow which covered smooth and even ice. The defendant is sought to be held liable in this action as a municipal corporation for negligence in allowing this street to become in an unsafe condition by reason of the accumulation of ice and snow. There was nothing to make it the duty of the city to see that this whole sidewalk was clean as long as a reasonably safe space was made for pedestrians to use it, considering- the surrounding locality and the use to which it was put. The premises were in a comparatively unimproved portion of the city, and the sidewalk itself was in front of vacant property. To entitle the plaintiff to recover he must show that the ice or snow which caused the in jury had been allowed by the city to accumulate so as to render the walk unsafe, and thus, the city’s negligence was the sole cause of the injury. It has been well settled in this State that a municipal corporation is not liable because ice and snow form upon a sidewalk and a person sustains in jury therefrom. Something more than that is necessary. The fact that in this climate in winter, where days of warm and. thawing weather alternate with days of frost, and where ice or snow is changed to slush or water, and then frozen into ice, it would be imposing upon the municipal corporation an impossible task to require them to remove such ice and snow from every one of the eight millions of square yards of sidewalks in the city of Hew York. Such a task would be plainly impossible; and to hold the city of Hew York liable for an injury occasioned by the accumulation of ice and snow upon a sidewalk under such circumstances, would make it an insurer of all persons using the streets. What the plaintiff must prove is that the municipal corporation neglected a duty that it owed to him in seeing that this sidewalk was clear and free from ice and snow on the day in question. The evidence as to the weather the day before-the accident, and the evidence that there was snow upon the adjoining premises during the day when the weather was so warm that snow and ice would rapidly melt, followed by freezing on the day of the accident, and then by a snow storm, would certainly account for the condition of the smooth ice upon this sidewalk which was covered with the snow upon which the plaintiff slipped. There is not the slightest evidence to show that this old ice which had accumulated had anything to do with causing this accident.-

The facts in this case are not unlike those in the case of Taylor v. City of Yonkers (105 N. Y. 206), and what the court therejsays would apply to the case now under consideration : “Another and different emergency sometimes occurs, and was referred to in the charge to the jury. When the streets have been wholly or partially cleaned, it often happens that a fall of rain or the melting of adjoining snow is suddenly followed by severe cold, which covers everything with a film or layer of ice and makes the walks slippery and dangerous. This frozen surface it is practically impossible to remove until a thaw comes which remedies the evil. The municipality is not negligent for awaiting that result. It may and should require householders, when the danger is great, to sprinkle upon the surface ashes or sand or the like, as a measure of prudence and precaution, but is not responsible for their omission. * " * The emergency is one which is common to every street in the village or city, and which the corporation is powerless to combat. Usually it lasts but a few days, and the corporate authorities may await without negligence a change of temperature which will remove the danger.” The court then commented upon the fact that the sidewalk along the street in question passed an unoccupied lot, and that before the accident the snowfall had been heavy and had been trampled down by travel, and by freezing and thawing had been converted into ice. “ On the night preceding, rain fell which washed the sand from the ice, and then froze, covering everything with a new surface, and making’ the whole city slippery and dangerous for travel. * * * He stepped on the new ice surface just formed, and for the existence of which the city was in no respect responsible. Had that been the whole of the case a recovery would have been impossible.” The court then discusses the question as to whether or not, there being a concurrent cause for which the defendant is responsible, a recovery can be sustained, and after examining the authorities says: “We have already stated the rule to be in this state that the defect, even when a concurring cause, must be such that without its operation the accident would not have happened. Where the defect is the sole explanation of the injury, there is no difficulty, but where there is also another, for which no one is responsible, we have held that ‘ the plaintiff must fail if- his evidence does not show that the damage was produced by the former cause.’ * * * And we added that he must fail also if it is just as probable that the injury came from one cause as the other, because he is bound to make out his case by a preponderance of evidence, and the jury must not be left to a mere conjecture or to act upon a bare possibility. In this case that rule was violated. The plaintiff slipped upon the ice. That by itself was a sufficient, certain and operating cause of the fall. Bo other explanation is needed to account for what happened.” The court continued: “ I am quite willing to hold cities and villages to a reasonable performance of duty, but I am not willing to make them practically insurers by founding their liability upon mere possibilities.”

The rule established in this case is further emphasized by the case of Harrington v. City of Buffalo (121 N. Y. 149). In that case the court says: “ The evidence established the fact that for four days previous to the accident the weather had been warm, causing the snow and ice on the walk to thaw and become soft, wet and sloppy. On the night previous to the accident, the weather suddenly became colder and the snow and slush, in the streets froze hard, forming ice and leaving foot-prints made during the previous sloppy weather, plainly visible in the frozen deposit. In some places the owners of property adjoining the walk had cleaned off the snow, but at the place of the accident it had not for some weeks been entirely removed. Much of the snow falling during that time had passed off through the natural effect of the elements upon it, but the portion referred to was what remained of a much larger accumulation. The walk, as thus shown, presented no unusual appearance for cities in our uncertain and inclement climate, and caused no more objectionable obstacle to safe passage than frequently exists in cities and villages during the cold season. Whatever might have been its condition, so far as danger was to be apprehended, it arose solely from its frozen and slippery condition, and that, as we have seen, was caused by the freezing of the night before the accident. The danger arising from the slipperiness of ice or snow lying in the streets is one which is familiar to everybody residing in our climate, and which every one is exposed to who has occasion to traverse the streets of cities and villages in the winter season. Accidents occurring from such causes are chargeable solely to the persons injured, unless it can be shown that the cause thereof has been occasioned, aggravated or negligently permitted by the act of some third party charged with the duty of obviating or removing it. "x" * * The duty resting .upon municipal corporations to remove accumulations of ice and snow as it falls from time to time upon their streets is a qualified one, and becomes imperative only when dangerous formations or obstacles have been created and notice of their existence has been received by the corporation.” In the case of Ayres v. The Village of Hammondsport (130 N. Y. 665) it seems that the plaintiff fell upon new ice formed the night before over an old accumulation of ice and snow upon'a sidewalk in one of the defendant’s streets, which had been negligently constructed. It was held, in an-action to recover damages, that in the absence of evidence showing that the slope of the walk was a concurring cause of the fall, without which it would not have happened, the plaintiff was not entitled to recover. It seems to mé what was said in these cases applies to the -case now under consideration. The weather before the end of February had been warm, but had turned cold on the night of the first, followed by snow. The plaintiff expressly says that he slipped upon snow, and that that snow covered smooth ice. There is not a particle of evidence to show that the old ice which had accumulated upon the sidewalk was dangerous, or that the condition that existed before this fall of snow was anything more than a condition that is constantly experienced in winter in this climate, and was, as was said in Harrington v. City of Buffalo (supra), “ one which is familiar to everybody residing in our climate, and which every one is exposed to who has occasion to traverse the streets of cities and villages in tire winter season. Accidents occurring from such causes are chargeable solely to the persons injured, unless it can be shown that the cause thereof has been occasioned, aggravated or negligently permitted by the act of some third party charged with the duty of obviating or removing it. -x- -x- The duty resting upon municipal corporations to remove accumulations of ice and snow as it falls from time to time upon their streets is a qualified one, and becomes imperative only when dangerous formations or obstacles have been created and notice of their existence has been received by the corporation.” The old ice upon this sidewalk was, as before stated, rough; had been covered with ashes on the morning before the accident, and nothing exists to show that it was dangerous, as it had existed prior to the first of February. If new, smooth'ice had formed it must have formed after the thawing on the first. For that, it is clear, the defendants were not responsible; and whether the plaintiff slipped upon that new ice or upon the snow, as he says he did, the accident was the result, not of the neglect of the defendants, but of the ice and snow which had formed or fallen upon this sidewalk during the night before the accident, and for that the defendants were not responsible. There is absolutely nothing to show that the old ice or trampled snow which had remained upon this sidewalk for some time was dangerous, or caused the dangerous condition of the street. Ho accident is shown to have occurred before in this street, and nothing appears to show that before the second day of February the condition which the city allowed to exist was such that any one using ordinary care would be in any danger. We have then the thaw followed by frost and the snow storm. That this combination created a condition which caused the plaintiff to fall is the only logical conclusion than can be drawn from the evidence, and for that the city was not responsible.

Upon the whole case, I do not think that the evidence justified a finding of the jury that the injury to the plaintiff was caused by any negligence of the defendant, or by a condition of the street made dangerous by the defendant’s negligence, and for this reason the judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Van Brunt, P. J., and McLaughlin, J., concurred; Barrett and Rumsey, JJ., dissented.