Sawyer v. City of Amsterdam

20 Abb. N. Cas. 227, 10 N.Y. St. Rep. 113

Opinion

BY the Court,

*—Landon, J.

[after stating the facta.] It was proper to show the condition of the sidewalk, and the circumstances attending plaintiff’s fall; and hence evidence of the presence of the snow and ice, and how they contributed to plaintiff’s fall, were admissible.

The referee finds that the sidewalk was, and long has continuously been, covered with snow and íce; but that plaintiff’s fall was caused principally by reason of the abrupt step or descent in the walk, and the steep incline or slope at the foot of the step. The referee did not, in express terms, find that the village was negligent in suffering the snow and ice to remain upon the sidewalk, but he refused to find that It was not negligent.

As the case stands there is no ground for the claim that the plaintiff has recovered upon a different cause of action from that which she presented.

The negligence which contributed to her injury was the defective sidewalk; no doubt the ice also contributed. If we assume that the presence of the ice was not negligence on the part of the village, then the defective walk was the sole negligence; if the presence of the ice was negligence, then two concurring acts of negligence injured the plaintiff, and the city, being at least responsible for one of them, is liable,

The learned counsel for the city cites Ring v. City of Cohoes, 77 N. Y. 83, and Scarles v. The Manhattan Railway Co., 101 N. Y. 661.†

In the cases cited, the defendant was excused from liability because it did not appear which of two causes injured the plaintiff, and for only one of them was defendant chargeable with negligence. Here we know that the defendant is chargeable with negligence with respect to one of the causes which did injure the plaintiff, however it may be with the other.

■ With respect to the alleged contributory negligence of the plaintiff, and constructive notice to the defendant of the unsafe condition of the sidewalk, the report of the referee is amply supported by the evidence.

Judgment affirmed, with costs.

Present Learned, P. J., and Bocices and Landqn, JJ.

Rev'g 49 Super, Ct. (J. & S.) 425.