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Davis v. City of Kingston

5 N.Y.S. 506 Court N.Y. Gen. Term Decision date 1889-05-27 English

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p. 506
Davis v. City of Kingston.
(Supreme Court, General Term, Third Department.
May 27, 1889.)

Headnote

Municipal Corporations—Icy Streets—Constructive Notice.
In an action against a city for injuries caused by slipping on ice, where the only evidence of the existence of ice prior to the accident is that it snowed on the third day before, rained on the second day before, and froze on the night before, together with the testimony of plaintiff that there was ice there on the night before, no inference of constructive notice can be reasonably made, and the question should not be submitted to the jury.
Appeal from circuit court, Ulster county.
Action by Susan Davis against the city of Kingston for personal injuries. A motion for nonsuit was granted, and plaintiff appeals.
Argued before Learned, P. J., and Landon and Ingalls, JJ.
William lounsbery, for appellant. G. D. B. Hasbrouek, for respondent.

It snowed on Thursday; rained on Friday; froze on Saturday night. Sunday morning plaintiff fell on the ice. She claims that there was constructive notice to defendant, and that defendant was therefore negligent in not cleaning off the sidewalk on this business street. There was no other evidence of the existence of the ice prior to the accident than can be inferred from the facts above stated, and the plaintiff’s testimony that there was ice on the sidewalk Saturday night. While it may be á question for the jury as to the length of time necessary to constitute constructive notice in all cases where such notice could be reasonably inferred, yet,' when the time is so short that no such inference could be reasonably made, then the court may properly take the case from the jury. Such was the Muller Case, 32 Hun, 24 , affirmed 105 N. Y. 668 , 13 N. E. Rep. 929 . Such, we think, is the present case. It would be an improper inference to hold that on Sunday morning the city had had constructive notice of ice on a sidewalk which, so far as the evidence shows, was not formed before the previous day; and it cannot justly be argued that the existence of soft snow (or slush) on the sidewalk Saturday was evidence of constructive notice. The city could not foresee that this

p. 507
“slush” would freeze, and form ice. Bain might come and wash it all away. In the uncertainties of our winter climate a city cannot be expected to guard against such contingencies. The judgment should be affirmed, with costs.

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