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Ney v. City of Troy

3 N.Y.S. 679 Court N.Y. Sup. Ct. Decision date 1888-11-20 English

Decision Majority — Learned, P. J. · Concurring

Contents

Majority

p. 679
Ney v. City of Troy.
(Supreme Court, General Term, Third Department.
November 20,1888.)

Headnote

1. Municipal Corporations—Defective Streets—Icy Sidewalks._
In an action against a city for injuries caused by falling on an icy sidewalk, it ap- . peared that at the place of the accident the sidewalk was covered with ice for a distance of about 25 feet. The ice was formed by water flowing down from an enbankment, and freezing. It had alternately thawed and frozen for two or three weeks. The ice was in several layers, and at the time had a slight covering of snow. It did not appear that the streets were in a generally icy condition. Held., that notice to the city might be presumed from the long-continued accumulation.[1]
2. Same—Instructions—Duty op City—Province op Jury.
The court is not bound to lay down any comparison between the duty of the city as to one street and its duty to another. The question for the jury is the city’s duty to the street and the place of the accident.
3. Same—Duty to Charge—Matters not Alleged.
Where plaintiff does not claim that there should have been a barricade at the place of the accident, the court need not charge on the subject.
4. Witness—Privileged Communication—Attorney and Client.
Testimony of a conversation between plaintiff and his attorney immediately after the accident, relating to the case and the retainer of the attorney, is properly excluded.
5. Damages—Proximate Cause—Evidence.
In an action for personal injuries, the testimony of a medical expert as to the probable duration of plaintiff’s pain, who testifies that it is extremely doubtful whether plaintiff will ever recover from it, is not within the rule in Strohm v. Railroad Co., 96 N. Y. 306 , excluding such evidence when the apprehended consequences are contingent, speculative, or merely possible.
6. Trial—Instructions—Testimony op Plaintipp.
When the trial judge states that, in considering plaintiff’s testimony, the jury are to take into accounfthe fact that he is interested, and that they may discredit his testimony, it is not necessary to explain further.
Appeal from circuit court,‘Rensselaer county.
Action by George Key against the city of Troy, for damages for personal injuries caused by falling on an icy sidewalk. Verdict and judgment for plaintiff. Defendant appeals. The testimony of conversations between plai ntiU and his attorney, referred to in the opinion, related to the employment of his attorney. It appeared from the plaintiff’s own testimony that on the day of the accident, and shortly after it had occurred, he called upon his counsel, who advised him to go up to the place of the accident with his witness, Baltimore, then a stranger to the plaintiff, and they went together to the loans in quo, and then and there plaintiff pointed out to his witness where he fell. On his cross-examination defendant’s counsel asked him if he did not then consult Judge Fursman about this ease, and retain him as counsel; but the trial judge sustained the objection to such testimony, and it was excluded.
Argued before Learned, P. ,T„ and I,andón and Ingalls, JJ.
B. A. Parmenter, for appellant. Edgar L. Fursman, for respondent.

The plaintiff on the 17th of .January, 1884, between 12 and If. m., fell on the east side of Ninth street and was injured. The cause of the fall was a deposit of ice on the sidewalk, about 25 feet long, and the width of the sidewalk, about 12 feet. It was some two inches thick at the curb, and five inches at the place of the accident, fo'hned of snow saturated with some water. There is an embankment at the east side of the sidewalk, and where the ice joined the embankment it formed a sort of radiating semicircle, spread out under and wider as it went towards the curb. The ice

Concurrence

p. 680
formed from the gully which came from top of the hill. The water ran over tliesidewalk, and spread out. It had thawed and frozen for two or three weeks. The ice was in layers, dark and dirty. There was a little snow over it at the time. The plaintiff calls the place a lump of ice about 12 inches in thickness. . Probably the testimony of the civil engineer is more accurate. We do not see that this case is like the Taylor Case, 105 N. Y. 202 , 11 FT. E. Rep. 642. In the Kinney Cane, 108 FT. Y. 567, 15 FI". E. Rep. 728, the court cite the Todd Case, 61 FT. Y. 506, with approval, and say that the city may be liable to a traveler for injuries occasioned by sidewalks made unsafe in consequence of an accumulation of ice. That seems to be the present case. The ice was not in one sheet, or of recent formation. In the Kaveny Case, 108 FT. Y. 571, 15 FT. E. Rep. 726, the court say that the condition on the west end had nothing to do with the case, and that there was no proof that plaintiff slipped on ice, the product of the conductor at the east end. Furthermore, that it could not be, said that the freezing of the drip of the eaves was the proximate cause of the fall. The court, therefore, held that the city was not responsible, and hinted that they were not disposed to follow the “not to be questioned” Todd Case. In the present case we do not see that there was any general icy condition of streets. The accumulation seems to have been local, and so long continued that notice to the city might be presumed. We think, therefore, that plaintiff should not have been nonsuited. Colburn v. Canandaigua, 15 N. Y. St. Rep. 668 .

The conversation between plaintiff and his counsel was properly excluded. The testimony given by the doctor as to the probable duration of plaintiff’s pain does not seem to us to come within the objection sustained in Strohm v. Railroad Co., 96 FI. Y. 806. There must be a reasonable certainty that the consequences will result from the original injury The doctor did not say that plaintiff might suffer pain, but that it was extremely doubtful that he would ever recover from it. The fact that there was no barrier there was only descriptive. It was not claimed that the city was bound to erect a barrier. The learned judge had sufficiently stated that in considering the plaintiff’s testimony the jury were to take into account the fact that he was interested. He had said that they might discredit plaintiff’s testimony. It was not necessary to explain further. The court was not bound to lay down any comparison between the duty of the city as to onestreet and its duty as to another. The question for the jury was the city’s duty as to this street and this place. The plaintiff’s counsel did not claim that there should have been a barricade at the place; so that there was no need to charge on the subject. Nothing in the charge had implied any such duty. On the whole, we see no error. Judgment and order affirmed, with costs.

Ingalls, J., concurs.

Landon, J,

I understand that this piece of ice was, and had long been, rounded, ridgy, and uneven, and therefore was more dangerous than a uniform surface of ice spread over the length and width of the walk would have , been, and I therefore concur.

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