Majority
p. 276Cynthia M. Jones, Resp’t, v. The City of Troy, App’lt. (Supreme Court, General Term, Third Department, Filed March 16, 1889.)
Headnote
"Municipal corporations—Negligence—Contributory—Icy pavement •—Notice to city.In an action for personal injuries to plaintiff caused "by falling upon an icy sidewalk in the city of Troy, the testimony offered by plaintiff tended to show that she was walking carefully; that the walk had not been attended to, but as the snow had fallen from time to time during the winter, it had been trodden down and become an uneven or lumpy surface, and had been so for five or six weeks. Held, that a judgment for the plaintiff was proper; that she was free from negligence, and that the city had constructive notice of the condition of the sidewalk.
Appeal from a judgment in favor of the plaintiff entered "upon the verdict of a jury upon the trial at the Rensselaer 'circuit, and from an order denying a motion made upon the minutes for a new trial.
This action was to recover for injuries sustained by the plaintiff by falling upon an icy sidewalk. On the afternoon of the 11th of February, 1884, the plaintiff, while walking upon the westerly sidewalk of Harrison Place, ■stepped upon some rounded or oval ice which was partly con-cealed by a light flurry of snow then falling, and she slipped ■and fell, and her hip was broken.
The testimony tended to show that the plaintiff was walking carefully; that the walk had not been attended to, Tbut that as the snow had fallen from time to time during the winter, it had been trodden down and had become an. -uneven or lumpy surface of ice, and had been so for five or six weeks.
E. L. Fursman, for app’lt; R. A. Parmonter, for resp’t.
—We think this judgment must be affirmed. The ice upon the sidewalk caused the plaintiff’s fall. It was not smooth ice, evenly distributed over the walk, but was oval or lumpy, more in one place than in another as the witness described it, and thus its uneven surface constituted a peril in addition to that which .mere slipperiness caused. It had been suffered to remain in this dangerous condition for about five weeks, thus affording evidence of constructive notice to the city. The jury found upon evidence warranting the finding that the plaintiff was free from negligence.
Judgment and order affirmed, with costs.
Learned, P. J., and Ingalls, J., concur.