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Meginn v. Ramsdell

163 A.D. 232 Court Second Department, Decision date 1914-06-26 English

Delivered by Burr, J.:

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p. 232
Elizabeth Meginn, Respondent, v. James A. P. Ramsdell and Others, Individually and as Trustees of the Last Will and Testament of Homer Ramsdell, Deceased, Appellants.
Second Department,
June 26, 1914.

Headnote

Negligence — injury by fall on icy sidewalk — proqf not justifying recovery — release.
A plaintiff who slipped and fell upon the approach to a ferry, owing to an accumulation of ice, cannot recover for injuries received where it appears that the snow storm which caused the accumulation ceased only about
p. 233
an hour before the accident. This, because the defendant was entitled to a reasonable time within which to remove the ice.
Where the plaintiff gave a written release of all her claims there is a presumption that it was valid, although executed before she knew the full extent of her injuries.
Appeal "by the defendants, James A. P. Eamsdell and others, individually and as trustees, etc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Dutchess on the 12th day of January, 1914, upon the verdict of a jury for $1,800, and also from an order entered in said clerk’s office on the 22d day of January, 1914, denying defendants’ motion for a new trial made upon the minutes.
Walter L. Glenney [Bertrand L. Pettigrew with him on the brief], for the appellants.
Morschauser, Mack & Mulvey, for the respondent.

Plaintiff’s complaint is based upon an allegation that defendants negligently permitted their walks and approaches to the ferry house to become smooth and icy, and not upon any defective construction thereof. In addition, plaintiff’s own testimony is to the effect that the walk was icy at the spot where she fell, and this was twice repeated. It appears without dispute that snow and sleet had fallen on the morning in question, and it had only ceased storming about an hour before the accident.

The rule applicable to defendants is the use of reasonable care in the maintenance of the approaches to its ferry house. (Weldon v. N. Y., N. H. & H. R. R. Co., 159 App. Div. 649 ; Kelly v. Manhattan Railway Co., 112 N. Y. 443 .) Ho negligence could be predicated upon failure to remove snow or ice within an hour after it had fallen. It appeared in evidence that plaintiff had executed a release in writing of the claim in suit. When the defendants read in evidence this instrument, whose execution was not denied, the presumption arose that it was valid. (Griffith v. American Bridge Co., 157 App. Div. 264 .) Plaintiff’s own testimony clearly establishes that she

p. 234
intended to execute a full release of her claim, although at the time of the accident she may have been ignorant of her injuries. At the close of the entire case plaintiff’s complaint should have been dismissed, and, acting within the power and authority now given to us, we think that the judgment and order appealed from should be reversed, with costs, and plaintiff’s complaint dismissed, with costs.[1]

Jemes, P. J., Carr, Stapleton and Putnam, JJ., concurred.

Judgment and order reversed, with .costs, and plaintiff’s complaint dismissed, with costs.

* See Code Civ. Proe. § 1317, as amd. by Laws of 1913, chap. 380.— [Rep.

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