Davis v. City of Kingston — 24 N.Y. St. Rep. 93

Majority

p. 93

Susan Davis, App’lt, v. The City of Kingston, Resp’t.

(Supreme Court, General Term, Third Department,

Filed May 27, 1889.)

Headnote

1. Municipal corporation—Negligence—Constructive notice—When NOT QUESTION FOR THE JURY.

While it may be a 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, the court may properly take the case from the jury.

Appeal from a judgment dismissing plaintiff’s complaint. The action is for city’s negligence. The claim arises out of injuries from falling on the ice.

William Lounsberry, for app’lt; G. D. B. HasbroucTc, for resp’t.

It snowed on Thursday; rained on Friday; froze on Saturday night.

p. 94

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 iio 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 a 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 tim.e 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 ; aff’d, 105 N. Y., 668 ; 8 N. Y. State R., 910., 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 forsee that this “slush” would freeze, and form ice. Rain 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.