Larson v. City of New York — 145 A.D. 619

Majority

p. 619

Agnes Larson, Respondent, v. The City of New York, Appellant.

Second Department,

June 16, 1911.

Headnote

Municipal corporation — negligence — snow and ice — fall on sidewalk.

Where snow on a street in New York city by thawing and freezing forms in rough and uneven ridges and the dangerous condition continues . for many days, during which there was opportunity to remove it and during which it was cleared away generally in that locality, the city is not relieved from responsibility for this condition because subsequently and just before an accident happened some small addition was made to the accumulation.

Where it is shown that such sidewalk was in a dangerous condition for nearly two weeks prior to the time plaintiff fell thereon, the city is liable for injuries received although a new coating of ice had formed over the uneven surface only a day or two before the accident.

Jbnks, P. J., dissented.

Appeal by the defendant, The City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 19th day of January, 1911, upon the verdict of a jury for $1,500, and also from an order entered in said clerk’s office on the 31st day of January, 1911, denying the defendant’s motion for a new tripl made upon the minutes.

James D. Bell {Jesse W. Johnson and Archibald JR. Watson with him on the brief], for the appellant.

William McArthur {William H. Griffin and Martin T. Mantón with him on the brief], for the respondent.

The plaintiff was injured by falling upon an icy sidewalk in the borough of Brooklyn on the 8th day of February, 1908. The only question raised upon this appeal is whether there was evidence in the case which would justify the jury in finding that the defendant was negligent in reference to this walk. There was evidence that there was a heavy storm on or about

p. 620

the twenty-third day of January; that this was followed by a period of - mild weather; that this continued until about the ' first of February, at which time the weather became severe, remaining so up to the time of the accident on the evening of the eighth, with some snow and rain; that the' heavy snow of ■ January twenty:thiid was not removed at .the point of the accident, though generally cleared away in that locality, and that this snow had, under the thawing and freezing prior to the first of February, been thrown into ridges, and was very rough and uneven. There appears to he no doubt that there was a new coating of ice over these ridges, formed by the elements during the fore part of February, and it is conceded that, if this coating of ice had been formed on a sidewalk in good condition, no liability would be involved.' But here the evidence showed that the sidewalk had been in an unsafe condition for several days prior to the first of February, and the case was submitted to the jury upon the theory that the dan-, gerous ridges having been shown to exist, the plaintiff could not.be deprived of her right to a reasonably safe walk because of the fact that a new coating of ice had been formed over the old ridges, and we are of the opinion that this is the correct view of the law. The rule which exempts municipal corporations from liability where the condition is produced by climatic changes does not go to the extent of absolute immunity; it only operates to give the municipality a reasonable opportunity to perform its duty, by recognizing the impossibility of cleaning the streets from snow and ice under circumstances of great' difficulty. Here the dangerous condition had been created and had existed for many days while there was every opportunity for cleaning the snow and ice from the walk, and the municipality was not relieved from' responsibility for this condition •by the fact that subsequently some small addition was made to the accumulation. Ice upon a smooth sidewalk is one thing; ice accumulated upon a condition made dangerous by the neglect of the city is quite another, and we are of the opinion that the authorities cited by the learned justice who presided at the trial justified the submission of this case to the jury. The defendant took no exception to the refusal of the court to non-suit .or for the direction of a verdict, and the verdict not being

p. 621

contrary to law, we áre of the opinion that the judgment and order appealed from ought not to he reversed.

■ The judgment and order appealed from should he affirmed, with costs.

. . Thomas, Carr and Rich, JJ., concurred; Jerks, P. J., dissented. ' '

. Judgment and order affirmed, with costs.