Ballard v. Village of Hamburg — 143 A.D. 719

Majority

p. 719

Ada L. Ballard, Respondent, v. The Village of Hamburg, Appellant.

Fourth Department,

March 8, 1911.

Headnote

Municipal corporations — fall on icy sidewalk — new trial — newly-discovered evidence — injuries to female — existence of physical defect before trial.

Ia order that a pedestrian who was injured by a fall upon an icy sidewalk may recover from the municipality, it must appear that the fall was caused not merely by the presence of ice and a slippery condition, but by hummocks and ridges of ice and snow, which had accumulated and had been allowed to remain for a considerable time when the weather had been such as to permit them to be removed.

Where in an action by a woman to recover for injuries so caused there was a serious conflict of evidence as to whether a physical condition peculiar to her sex was caused by the fall or had existed prior thereto, a judgment entered on a verdict of over §10,000 will be set aside and a new trial granted on a showing of newly-discovered evidence tending to prove that the plaintiff’s condition existed before the accident.

Spring and Kruse, JJ., dissented.

p. 720

Appeal by the defendant, The Village of Hamburg, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 1st day of June, 1910, upon the verdict of a jury for $10,500; also from an order entered in said clerk’s office on the 13th day of April, 1910, denying the defendant’s motion for a new trial made upon the minutes, and also from an order entered on the 15th day of September, 1910, denying the defendant’s motion for a new trial upon the ground of newly-discovered evidence.

Philip A. Laing and W. H. Ticknor, for the appellant.

Charles W. Sickmon and Arthur C. Wade, for the respondent.

The judgment and orders should be reversed and a new trial granted, with costs to the appellant to abide event.

The action was for negligence. The plaintiff slipped and fell upon one of the defendant’s sidewalks and received injuries, for which she has recovered $10,500 damages. The recovery was based upon the claim that plaintiff fell upon a ridge of ice on the sidewalk eight or ten inches in height that had been permitted to remain upon the walk for months. The plaintiff, her sister and three other girls, friends of plaintiff, testified to this condition of the walk. Seven witnesses for the defendant gave evidence tending to show there was no ridge of ice there at all; and two other witnesses testified that plaintiff said she did not know whether there was a ridge of ice on tlje walk or not; that theré was ice, and it was slippery all about, and that on her way to the car after she fell she had to exercise great care to avoid falling again. There was also evidence on both sides as to the weather for some time before the accident, the fall of snow and rain and the freezing and thawing. There was evidence tending to show that all the walks were icy and slippery when the accident occurred, and I do not find that this evidence was contradicted. It was a question for the jury to determine what the condition of the walk was where the accident occurred. The slipping and falling on an icy sidewalk does not ordinarily give a right of action against a municipality, especially when the weather is such as to render all the walks icy and slippery.

p. 721

Under such circumstances the clean walks are the most dangerous after water has fallen upon them and frozen. In order to recover in an icy sidewalk case, it must appear that the fall was not by reason merely of ice and a slippery condition, but was caused by hummocks or ridges of ice and snow which had accumulated and been permitted to remain for a considerable time when the weather had been such as to permit the walk to be cleaned off. It often occurs that municipalities, large and small, are Visited by weather conditions causing their walks generally to be for a time in a dangerous condition from ice, and no one is at fault. The plaintiff in this case contended at the trial that her fall was upon a walk in such condition as to charge the defendant with liability under the well-settled principles of law above referred to. Where in such a case there is considerable evidence controverting such a claim on the part of the plaintiff, suspicion is liable to be created that the evidence may be made to suit the necessities of the case and avoid the law applicable thereto. Ordinarily the jury must settle the fact as to the real condition of the walk, and here it has found in favor of the plaintiff on this issue.

Upon the other great issue in this case, as to the injuries of the plaintiff chargeable to this accident, there was at the trial a serious conflict in the evidence. The plaintiff claimed that all the infirmities were chargeable to this fall upon the sidewalk, while the defendant insisted that she was ailing long before this accident, and that she has been allowed to recover here for infirmities in no way resulting from this fall. She lias the legal right to recover only for such injuries as actually resulted from the fall. It is always difficult to defend the claims of women for damages by reason of personal injuries arising from accidents. They can testify to their condition before the accident and their alleged sufferings since, and whether all their infirmities, which apparently exist and are real at the time of the trial, had their commencement at the time of the accident or date far "back of it, arc largely within the knowledge and keeping of themselves, and subject to little or no contradiction by other evidence. In these times when women’s spines and nerves and female organs play such an important part in negligence cases, we arc liable at tinies to become skeptical as to the real

p. 722

condition of things, when large verdicts are recovered from juries. Considerable evidence was given on the trial upon this issue, it was submitted to the jury and they rendered this large verdict. I will not attempt to analyze or discuss the evidence bearing upon this issue. It is claimed that the finding of the jury upon the two issues referred to was contrary or against the weight of evidence, and that the damages certainly are excessive. There was a motion for a new trial on account of newly-discovered evidence and the affidavits of witnesses were produced thereon showing they could give very important evidence, especially as to the plaintiffs condition before the accident, which might at least cause a considerable reduction in the amount of damages recovered. I am not satisfied with the verdict that has been rendered. We might, as we frequently do, provide for a reduction of the amount of the verdict merely, but I think it better to order a new trial and permit another hearing of the case before a jury. The parties will then have an opportunity to contest again all the questions involved in the case and take the judgment of another jury thereon.

All concurred, except Spring and Kruse, JJ., who dissented.

. Judgment and orders reversed and new trial ordered, with costs to appellant to abide event.