O'Hara v. City of Brooklyn — 57 A.D. 176

Majority

p. 176

Mary O’Hara, Appellant, v. The City of Brooklyn, Respondent.

Headnote

Negligence-—injury from,-a fall on a, city sidewalk on which snow had ieen left for three'days—evidence of care.,

■ In an action brought to recover damages for injuries sustained by. the plaintiff in consequence of her falling upon a city sidewalk from which the snow and ice had not been removed, evidence that the snow had remained on the sidewalk for three days; that an ordinance of the defendant city required that all snow should be removed from the sidewalks within four hours after it fell, and that a policeman employed by the city passed over this sidewalk once every four hours, and that it was his duty to report the condition of the streets and sidewalks justifies a finding that the city was guilty of negligence.

p. 177

Evidence that at the time of the accident the plaintiff was walking slowly and carefully along a narrow, rough and uneven path, which had heen beaten by persons passing over the sidewalk, is sufficient to warrant the jury in concluding that the plaintiff was exercising that reasonable degree of care which persons of ordinary prudence would use under the circumstances.

Jenks, J., dissented.

Appeal by the plaintiff, Mary O’Hara, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 19th day of June, 1900, upon the dismissal of'the complaint by direction of the court at the close of the whole case after a trial at the Kings County Trial Term.

Robert Stewart, for the appellant.

R. Percy Chittenden, for the respondent.

This is an action for damages for personal injuries sustained by the plaintiff by reason of a fall upon one of the sidewalks of the then city of Brooklyn, the accident occurring in December, 1896. At the close of the evidence the complaint was dismissed upon the motion of defendant’s counsel, on the grounds that plaintiff had failed to establish negligence on the part of the defendant and freedom from contributory negligence on her part. From the judgment entered appeal comes to this court.

The plaintiff, having been nonsuited, is entitled, on this appeal, to the most favorable construction of the evidence in support of her complaint, and all contested facts are to be treated as established in her favor. (Higgins v. Eagleton, 155 N. Y. 466 , 471, and authorities there cited.) The complaint alleges tne existence of an ordinance of the city of Brooklyn requiring that all snow and ice shall be removed from the sidewalks within a period of four hours after the falling thereof, and this, not being denied by the defendant, must be deemed to be admitted. The existence of the ordinance presupposes the duty on the part of the city to keep the streets, including the sidewalks, in a reasonably safe condition for public travel, and where a duty is imposed by law upon a corporation, neglect of that duty, resulting in injury to an individual, carries with it '

p. 178

a right of action, whether the corporation be public or private. (Canst, art. 8, § 3.) This is not questioned in the case now before us, the liability of the defendant being assumed, but the complaint was dismissed upon the motion of the defendant on the grounds' that the plaintiff had failed to show negligence on the part of the defendant and lack of contributory negligence on her part. The evidence shows that a snowstorm visited the city of Brooklyn on the 15 th and 16th days of December, 1896, of unusual severity; that the snow ceased to fall at about three o’clock in'the afternoon of the sixteenth; that on the nineteenth day of December, about eleven o’clock in the evening, the plaintiff, being lawfully in the streets of of Brooklyn, fell upon the sidewalk, from which the snow and ice had not been removed, sustaining the injuries complained of in this, action. It appears that persons passing over the sidewalls had beaten a- yarrow path, somewhat rough and uneven, and that the plaintiff, being called upon suddenly to go from her home to overtake persons who had just left the house, and to whom she desired to deliver a key, went out-without her rubbers on, and in passing over the sidewalk, thus conditioned, fell and sustained the injuries. It was in evidence that a policeman employed by the city passed over this beat as often as once every four hours, and that it was made his duty by the ordinances and by the regulations of the police department to report the condition of the streets and sidewalks. We are clearly of opinion that it was for the jury to say whether the defendant was guilty of negligénce in permitting the sidewalk to remain in the condition described by the witnesses during the time that elapsed after the storm had passed, and whether the condition was, in fact, dangerous to a degree which imposed an active duty upon the city. ■ .It is not the duty of a municipality to make the streets absolutely safe under all conditions, but it does owe the duty of exercising reasonable care to make them reasonably safe for the purposes for which they were intended, and where there are inferences to be drawn front the evidence which support the contention of the plaintiff, it is the province of the jury to determine the facts. (Turner v. City of Newburgh, 109 N. Y. 301 .)

On the question of contributory negligence the plaintiff testified: “ I did not walk very fast, I couldn’t walk fast, it was too slippery to walk fast — for anybody to walk fast. ■ I did walk carefully to

p. 179

try and pick my way on that path after I got on it; I walked very slow, but I called, and they came back towards me, and as they got near me I fell. I fell in between the two iron posts. Just before I slipped and fell I didn’t know that I was going to fall; I went right along as careful as I could, and my foot turned from under me and I went down.” This evid ence was not disputed nor was it weakened on cross-examination, and the jury might have concluded, and very properly, that the plaintiff was exercising that reasonable degree of care which persons of ordinary prudence would use under the same circumstances.

It seems entirely clear to us that this was not a case to be determined as one of law, and that it was error to deny the request of the plaintiff to go to the jury on the questions of fact involved.

The judgment appealed from should be reversed and a new trial granted, costs to abide the event.

All concurred, except Jenks, J., dissenting, and Sewell, J., taking ño part.

Judgment reversed and' new trial granted, costs to abide the event.

Cases cited

Higgins v. Eagleton 155 N. Y. 466 N.Y. 1898-04-19 at 471 p. 177
Turner v. City of Newburgh 109 N. Y. 301 N.Y. 1888-04-10 p. 178