Hyperlawhypertext legal database Safford v. Village of Green Island 26 N.Y.S. 669

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Safford v. Village of Green Island

26 N.Y.S. 669 Court N.Y. Gen. Term Decision date 1893-12-27 English

Delivered by HERRICK, J.

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p. 669
SAFFORD v. VILLAGE OF GREEN ISLAND.
(Supreme Court, General Term, Third Department.
December 27, 1893.)

Headnote

Municipal Corporations—Defective Sidewalks—Proof of Negligence.
In an action against a village for injuries caused by falling on an icy sidewalk, though plaintiff slipped on a ridge in the sidewalk negligently formed in laying a water pipe, a nonsuit is properly granted, where it appears that the weather had been very cold for some days before the accident, and that the streets were generally slippery, and it cannot be determined from the evidence whether plaintiff would or would not have-fallen, except for the ridge.
Appeal from circuit court, Albany county.
Action by Ellen Safford against the village of Green Island to-recover damages for personal injuries caused by slipping and falling on icy sidewalk. From a judgment dismissing the complaint,, and $86 costs, plaintiff appeals.
Affirmed.
Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.
Edward W. Douglas, (E. Countryman, of counsel,) for appellant.
Smith & Wellington, (George B. Wellington, of counsel,) for respondent.

It appears in this case that a ridge had been-formed across the sidewalk by excavating to put in a water pipe, and the earth afterwards filled in had not been sufficiently packed down, but formed a ridge from four to six inches in height. This ridge was covered with ice, and, in the language of the plaintiff's daughter, “so that the ridge was slippery, glory, glassy. It was clear ice, glassy ice; shiny, like the surface of glass, and very slippery.” The thermometer had been below zero for some days prior to the accident in question, and the streets of the village were generally slippery. It is impossible to determine from the evidence-whether the plaintiff would or would not have fallen, except for the ridge upon the sidewalk. The jury could have merely guessed whether it was the ridge or the ice, or both combined, that caused the accident. The defendant was not responsible for the slippery condition of the sidewalk, or for the ice upon the ridge; and such being the case, and the plaintiff not establishing that the accident would not have occurred but for the presence of the ridge, she was-not entitled to recover, and the nonsuit was proper. Taylor v. City of Yonkers, 105 N. Y. 202 , 11 N. E. 642 ; Hunter v. Railroad Co., 116 N. Y. 615 , 624, 23 N. E. 9 ; Grant v. Railroad Co., 133 N. Y. 657 , 31 N. E. 220 . The judgment should be affirmed, with costs_ All concur.

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