O'Connor v. Mayor of New York

The learned trial judge stated in his charge to the jury certain of the conceded facts in this case as follows: “ It appears that Mrs. O’Connor fell on this ice or hard snow on the corner of Carlisle and Greenwich Streets. It appears that for ten or twelve days before the 25th of January there had been no considerable snow storm; in fact, as the sergeant of the signal service said, there had been only two small flurries of snow. Then on the 25th there was a snow-fall, and then it changed to rain, and then there was snow and rain, and these followed by sleet, and about half past two on the morning of the 26th of January the storm ceased. Then the temperature fell very low from that time forward down until the time of the accident, and afterwards the temperature was never above Jhe freezing point; it was always down below, and never above the freezing point. Well, the 26th passed and the 27th came, and on the evening of the 27th about seven o’clock she fell.”

The doctrine has been established by a number of recent cases that, while the obligation to keep the sidewalks reasonably free from snow and ice rests upon a municipal corporation, it shall nevertheless be allowed a reasonable time for the performance of such duty (Taylor v. City of Yonkers, 105 N. Y. 202 ; Kinney v. City of Troy, 108 N. Y. 567 ; Kaveny v. City of Troy, 108 N. Y. 571 ). Where the facts are

The facts here were so clearly uncontradicted that the trial judge stated them to the jury in his charge. Such facts bring the case at bar clearly within the ‘authorities above cited. The period between the snow-fall and the accident was less than forty-eight hours, and we think, as matter of law, that a reasonable time had not elapsed either to presumptively charge the defendant with negligence in not causing the walk to be cleared, or to charge it with constructive notice that the walk was slippery and dangerous. It follows that there was not sufficient evidence to support the verdict. There was really no more to go to the jury in this case than in Kinney v. City of Troy (supra), and the complaint should have been dismissed.

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

Bookstaver and Bischoee, JJ., concurred.

Judgment reversed and new trial ordered, with costs to appellant to abide event.

A motion for a re-argument was made at the succeeding General Term, and the following opinion was rendered thereon, April 7th, 1890.

Bischoff, J.—Counsel for respondent assumes that the” opinion of the January General Term herein directing a reversal of the judgment appealed from was predicated upon defendant’s want of notice, actual or constructive, prior to the happening of the accident complained of, that the sidewalk was in a dangerous condition, and that the court inadvertently overlooked the testimony of the defendant’s police officer who admitted upon the trial that the condition of the sidewalk was known to him some time before ¿he accident. No other ground for re-argument is assigned.

This view renders the question of notice of no importance in this case, for if it be conceded that defendant had actual notice of the dangerous accumulation of ice and snow on the sidewalk in question, defendant must nevertheless be held absolved'from the imputation of negligence if there was no reasonable opportunity to remove the danger between the time of its first appearance and the happening of the accident.

The motion for re-argument must be denied, with costs.

Larremore, Ch. J., concurred.

Motion denied, with costs.