Staley v. Mayor of New York — 37 A.D. 598

Majority

p. 598

Josephine E. Staley, Respondent, v. The Mayor, Aldermen and Commonalty of the City of New York, Appellant.

Headnote

Negligence—a pedestrian falling upon a crosswalk covered with ice and snow—when the failure to remove it does not constitute negligence.

On the 26th oí December, 1894, there was a fall of snow in the city of New York, which was followed by sleet and rain, which ended on the twenty-seventh in a second fall of snow, making a total snowfall during the two days of eight and two-tenths inches; thereafter, until December thirtieth, the thermometer continued below the freezing point, and there was no time in the interval when the snow which fell on the twenty-seventh was not frozen to the sidewalks and streets. On December thirtieth, a person, while walking down Fifth avenue, slipped on the crossing at Fifty-sixth street, which was covered with ice and snow, packed down and frozen in ridges, and fell and broke her leg.

Held, that the city of New York was not guilty of such negligence in permitting the crosswalk to be incumbered with ice and snow as rendered it liable for the injury.

Appeal by the defendant, The Mayor, Aldermen and Commonalty of the city of Hew York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 21st day of April, 1898, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the 25th day of April, 1898, denying the defendant’s motion for a new trial made upon the minutes.

Theodore Connoly for the appellant.

Edward Swann, for the respondent.

On Sunday afternoon, the 30th day of December, 1894, the plaintiff while walking down Fifth avenue on the west side reached the crossing of Fifty-sixth street. That crossing was covered with ice and snow packed down and frozen in ridges along the crossing. The plaintiff observed the condition of the walk and sought for a place where she might cross with safety. She stepped carefully off from the curb, but just as she took the second step from- the crossing, her foot slipped upon one of the ridges of ice and she fell and broke her leg. To recover the damages received by that fall she brought this action. Upon the trial she had a verdict, and a motion for a new trial made by the defendant upon the judge’s minutes was denied. After the entry of judgment this appeal was taken from that judgment and order.

The injury was received between four and five o’clock in the afternoon. It appeared from the evidence of the plaintiff’s witnesses that during the month of December down to the twenty-sixth the temperature had been above the freezing point nearly all the time. On the afternoon of the twenty-sixth a fall of snow began which continued until late in the night, when it turned to sleet and after-wards to rain, which ended about noon of the twenty-seventh, when a fall of snow began again which continued until half-past one of that day. The total fall of snow during the twenty-sixth and twenty-seventh was eight and two-tenths inches. On the twenty-seventh, after the snow fall- ended, the thermometer began to fall so that at some time on that day it descended to sixteen degrees above zero, the mean temperature on that day being about twenty-eight degrees¡ The thermometer continued below freezing from the twenty-seventh down to the thirty-first, and there was no time during those days when the snow which fell on the twenty-seventh-was not frozen to the sidewalks and streets. The plaintiff met. with her accident on the crossing of the roadway of Fifty-sixth street. There was no loose snow there, but the crossing was covered, as has been stated, with frozen snow and ice so that it was slippery.

Ho claim is made by the appellant that the plaintiff was guilty of any contributory negligence in attempting to go over the crosswalk as she did, but a reversal is claimed solely upon the ground that the city was not guilty of negligence in permitting the crossing at Fifty-sixth

p. 600

street, upon which the plaintiff fell, to be incumbered with snow and ice while the temperature was so low that the coating adhered to the pavement and could not conveniently be removed. We think this contention is well founded. It is not necessary to consider precisely what duty is imposed upon a municipal corporation by way of keeping the street crossings in a safe condition for pedestrians who have occasion to use them. It is certainly no greater than the duty imposed upon them with reference to sidewalks. As to them the municipality is bound only to use reasonable care to keep them in a safe condition. It often happens that a fall of rain is suddenly followed by severe cold, by reason of which the snow or ice is frozen to the sidewalk so that it is practically impossible to remove it until a thaw has come. In such case the rule is that the municipality is not negligent in awaiting the thaw. The emergency is one which is common to every street in the city and which the corporation is powerless to remove; and the municipality may await, without negligence, a change of temperature which will remove the danger. (Taylor v. City of Yonkers, 105 N. Y. 209 .) The rule laid down in the case cited has since that time been invariably followed in the courts. The case at bar is controlled by the principle there established, and, applying that principle, we are quite clear that the city was not guilty of any negligence by reason of the facts made to appear by the plaintiff’s witnesses.

It was erroneous, therefore, to refuse to dismiss the complaint because the defendant was not shown to have been guilty of negligence. For this error, the judgment and order must be reversed and a new trial granted, with costs to the appellant to abide the event of the action.

Van Brunt, P. J., Barrett, Patterson and O’Brien, JJ., concurred.

Judgment and order reversed, new trial granted, costs to appellant to abide event.