Delaney v. City of Mount Vernon — 89 A.D. 209

Majority

p. 209

Ellen Delaney, Respondent, v. City of Mount Vernon, Appellant.

Headnote

Negligence &emdash; injury from falling on ice on a sidewalk &emdash; momentary forgetfulness of its existence, by one who had previously noticed it, is not contributory negligence.

In an action to recover damages for personal injuries, sustained by the plaintiff in consequence of falling upon ice which had accumulated on a sidewalk in the defendant city, the only serious question concerning the plaintiff’s right to recover was whether she was guilty of contributory negligence.

The accident occurred on Sunday morning, when the plaintiff was returning from church. On her way to church, three-quarters of an hour before, she had perceived the accumulation of ice and walked around it. Going home, as she reached the accumulation of ice, she looked up at the house where she

p. 210

lived on the opposite side of the street, and while thus looking she slipped and fell.

Held, that the plaintiff's momentary forgetfulness of the presence of the obstruction could not be deemed contributory negligence as matter of law.

Appeal by the defendant, the City of Mount Vernon, from a judgment of the County Court of Westchester county in favor of the plaintiff, entered in the office of the cleric of the county of Westchester on the 22d day of September, 1902, upon the verdict of a jury for $800, and also from an order entered in said clerk’s office on the 17th day of December, 1902, denying the defendant’s motion for a new trial made upon the minutes.

William J. Marshall, for the appellant.

Odell D. Tompkins, for the respondent.

This is the case of a traveler on a city sidewalk falling ón a considerable accumulation of ice on such sidewalk, which had existed long enough to impute notice to the municipality — two or three weeks. The plaintiff’s wrist was broken by the. fall, and the jury awarded her $800. There is no suggestion that the damages were-excessive.

The only serious question relates to the plaintiff’s exercise of care. The accident occurred on Sunday morning when the plaintiff was returning from church. On her way to church, three-quarters of an hour before, she had perceived the accumulation of ice and walked around it. Going home, as she reached this point, she looked up at the house where sh^ lived on the opposite side of the street, which had previously been obscured from view by intervening objects, and while thus looking she slipped and fell. I do not think that her momentary forgetfulness of the presence of the obstruction in the street can be deemed contributory negligence as matter of law. ( Weed v. Village of Ballston Spa, 76 N. Y. 329 .)

The case is one of a large and familiar class, and involves no other question requiring notice. I advise the affirmance of the judgment

Present — Bartlett, Woodward, Hirschberg, Jenks and Hooker, JJ.

Judgment and order of the County Court of Westchester county unanimously affirmed, with costs.

Cases cited

Weed v. Village of Ballston Spa 76 N. Y. 329 N.Y. 1879-03-18 p. 210