Majority
Headnote
In an action to recover for personal injuries resulting from a fall upon an icy sidewalk in front of defendants’ brewery, the testimony tended to show that plaintiff fell at a place where there was a driveway and that the remaining portion of the sidewalk was free from ice. Held, that a dismissal of the complaint was proper.The plaintiff brought this action and sought to recover damages for personal injuries from a fall upon ice on the sidewalk in front of a brewery of the defendants. Testimony was admitted on the trial tending to show that the plaintiff fell where there was a driveway, and it was also proven that the remaining portion of the sidewalk was free from ice. At the close of the case for plaintiff a motion was granted to dismiss the complaint.
After a careful examination of the record we are unable to distinguish this case from Moore v. Gadsden, 93 N. Y. 12 , and are of opinion that the nonsuit was properly granted. The learned counsel for the appellant contends that the defendants interfered with the sidewalk in violation of certain ordinances of the city which are not printed in the case, and, therefore, are not before us for review. It may be fairly inferred that water flowed off the land of defendants on the sidewalk and there became ice. Whether such water resulted from melting snow and ran down the natural grade of the land, or whether the water flowed from pipes, and. the natural grade of defendants’ premises had been disturbed, does not appear in the case. The defendants had the right to drive over the sidewalk as it was necessary in the use of their premises. Judgment affirmed, with costs.
Van Wyok, J., concurs.
Judgment affirmed.
Cases cited
- Moore v. Gadsden 93 N. Y. 12 p. 596