Rogers v. City of Rome

The plaintiff sustained the injuries of which he complains, which concededly were serious, at about 7:15 o’clock in the evening on December 22, 1902, by slipping and falling upon the sidewalk on the northerly side of West Dominick street, one of the principal streets in the defendant city. The accident occurred in front of the Russel & Walters store, one of the chief business places -in the city. At the place of the accident, and extending for a considerable distance in either direction, the sidewalk was 20 feet wide, was composed of solid flagstone, and was level and perfect in its construction. At the time in question the sidewalk and adjacent premises were lighted by electric lights in the usual manner. There was upon the sidewalk at the place Of the accident an accumulation of ice and snow, which extended along its center for a considerable distance in either direction. Such accumulation was described by different witnesses as being from to 4 or 5 inches in thickness, and from 2Ji to 7 feet in width, sloping .gradually to either side; .concededly leaving a space of about 6 feet upon either side of such ¡sidewalk which was not interfered with by the obstruction of which

Under the circumstances disclosed by the evidence in this case, we think the plaintiff failed to establish that the defendant was guilty of actionable negligence. If upon such evidence the defendant could be held liable, in effect the duty is imposed upon a municipality to keep its sidewalks free from ice and snow under any and all circumstances. In the case at bar the obstruction complained of was almost the slightest that could be imagined under the conditions prevailing, and it was remedied by the common method of sprinkling sawdust and ashes upon it. The obstruction complained of was such as would ordinarily exist under the conditions prevailing at the time, and was so slight—only sloping about a half inch to the foot from the center in either direction—that it could hardly be discovered except by actual measurement, and from the edge of such slope upon either side there was a clear and unobstructed way for any person desiring to pass over such walk. When it is considered that such walk was sprinkled with sawdust and ashes in the morning, and again almost immediately preceding the time when the plaintiff passed over it, we think the defendant .was not negligent in allowing it to remain and be in that conditionX We do not agree to the proposition that the leaving of such a small area of snow and ice, of the character described by the witnesses, upon the walk in question, under the circumstances disclosed by the evidence in this case, establishes negligence on the part of the defendant; nor do we interpret the authorities cited and relied upon by respondent’s counsel as establishing such doctrine.

In the case of Klaus v. City of Buffalo, 86 App. Div. 221 , 83 N. Y. Supp. 620 , the walk in question, as described in the opinion of this

The obstruction complained of in the case of Scanlon v. Village of Weedsport, 85 App. Div. 623 , 82 N. Y. Supp. 577 , was “a ridge some eight or ten inches in height, and six to eight inches in width, running through the center of the walk for its entire length, and had been permitted to remain, although it might have been removed with the -exercise of a fair degree of care and diligence, and that it was by reason of this lack of diligence and effort’that the plaintiff received the injury complained of.” See opinion supra. The walk upon which this ridge existed was five feet in width. The street lights in the village were not lighted that night. _The accident happening after dark.

In Beck v. City of Buffalo (Sup.) 63 N. Y. Supp. 499 , the condition of the walk upon which the plaintiff fell is thus described in the opinion of this court, and is warranted by the evidence in the record upon that appeal:

“The snow and ice had been, allowed to accumulate, and by constant usage a path had been formed and packed in the center of the walk, sloping up three or four inches on the sides of this dish-shaped space. The worn track was slippery, and eighteen to twenty inches in width. This had remained substantially unchanged for three or four weeks.”

An examination of the record upon appeal in the case referred to does not disclose the exact width of the walk, but it appears there-, from that along the inside line of the walk there stood an iron railing about 18 inches high, and that, when the plaintiff fell as he walked

An examination of the evidence in the case of Walsh v. City of Buffalo, 17 App. Div. 112 , 44 N. Y. Supp. 942 , shows that the walk upon which the plaintiff fell was entirely covered with ice, sloping each way from the center, thus presenting a sheet of ice described as extending over the walk “from the outer edge to the inner.”

The case of Keane v. Village of Waterford, 130 N. Y. 188 , 29 N. E. 130 , presented the case of a walk about 11 feet wide, upon which a platform along the front of an adjoining hotel encroached about 4 feet, leaving for the use of pedestrians a walk about 7 feet in width. Upon this walk, and about 1 foot from the outer edge of the platform, a ridge of ice or of snow and ice had accumulated, which was 5 or 6 inches in height, and sloped towards the platform and to the gutter line, entirely covering the portion of the walk available to pedestrians, and amounting to a dangerous obstruction.

The facts of the cases above referred to are so greatly different from those in the case under review that we are unable to accept the decisions in those cases as applicable to this case. We have found no other case presenting facts to any extent similar to those of this case which holds a municipality to such a strict rule as is contended for by the plaintiff herein. If the defendant is chargeable with negligence upon th.e evidence in this case, then it seems to me that such a municipality cannot relieve itself from the charge of negligence in case a pedestrian is injured upon one of its sidewalks, except by showing that such sidewalk, at least if located in the business portion of the city, was kept absolutely free from snow and ice, no matter what conditions of weather prevailed. Certainly reasonable care and prudence would not have discovered that, a person traveling upon a walk 20 feet wide, properly lighted, which had an accumulation of snow and ice extending along its center 7 feet wide, and not more than 4 or 5 inches in thickness, in the center sloping gradually to either edge, thus leaving a clear space of 6 feet upon either side upon which pedestrians could pass with safety, and especially when such accumulation of ice and snow had been properly sprinkled with ashes and sawdust, such walk was in a dangerous and unsafe condition, and such as to make the municipality liable in case any person happened to slip or fall thereon.

.We conclude that the verdict of the jury, which, in effect, found that the defendant was guilty of negligence, was contrary to and against the weight of the evidence.

But an equally serious question to be determined upon this appeal is whether or not the plaintiff showed himself to have been free from contributory negligence. This question is presented by the defendant’s exception to the denial of its motion for a nonsuit made at the

We are of the opinion that the plaintiff did not exercise that degree of caution which the law required of him in order to discharge the burden of affirmatively showing himself free from contributory negligence. One may not proceed along a walk of the width of this one, upon a dangerously slippery ridge of ice and snow, without exercising such care to avoid injury as to know whether other uarallel portions of the walk are free from obstruction and safe for travel. A plaintiff using so little care for his own safety must be regarded as electing to continue to walk into known danger, trusting solely to

We think the obligation resting upon the plaintiff in this case may be expressed in the language of Parker, J., in Durkin v. City of Troy, 61 Barb. 437 -455:

“The obstruction was, therefore, one to be avoided by those using the sidewalk, and seeing, or being able to see, the ice; and, if it could be readily avoided, the failure to avoid it, by one using the sidewalk, and plainly seeing the obstruction, must be accounted negligence. If there was danger in walking over this piece of ice, and the plaintiff voluntarily and unnecessarily undertook to walk over it, when he could plainly see it and easily avoid it, and fell and broke his leg, I do not see how he can meet the allegation that his own negligence contributed to the result,46r avoid the conclusion that he must therfefore fail to recover damages of the city ‘Volenti non fit injuria.’ * * * '4f the ice presented a dangerous obstruction, which' the defendant was bound to do away, by removal or some other means, so that it was negligence on its part to leave it on the sidewalk, it must follow that it was negligence on the part óf the plaintiff voluntarily and unnecessarily to venture upon this dangerous obstruction, however carefully he might attempt to carry himself upon it. The duty of the passenger [pedestrian] in such cases is to avoid the obstruction, .and not to encounter its dangers.” Whalen v. Citizens’ Gaslight Co., 151 N. Y. 71 , 45 N. E. 363 .

In Kleng v. City of Buffalo, 72 Hun, 541 , 25 N. Y. Supp. 445 , the rule is stated in the headnote as follows:

“A person is guilty of contributory negligence, who, fully understanding the condition of smooth, sloping ice in the middle of a sidewalk (it being in the daytime, and the ice not covered with snow), deliberately walks upon the ice, and slips thereon and is injured, when he could have passed along the side of it with safety.”

In Weston v. City of Troy, 139 N. Y. 281 -283, 34 N. E. 780 , 781, it was said:

“The presumption which a wayfarer may indulge that the streets of a city are safe, and which excuses him from maintaining a vigilant outlook for dangers and defects, has no application where the danger is known and obvious.”

Neddo v. Village of Ticonderoga, 77 Hun, 524 , 28 N. Y. Supp. 887 .

We conclude that, as matter of law, the plaintiff did not show himself free from contributory negligence; that the learned trial justice should have granted the defendant’s motion for a nonsuit; and that the finding of the jury that the defendant was guilty of actionable negligence was contrary to and against the weight of the evidence. The errors above specified require the reversal of the judgment and order appealed from.