O'Connor v. Mayor of New York — 29 N.Y. St. Rep. 502

Majority

p. 502

Thomas O’Connor, Resp’t, v. The Mayor, etc., of N. Y., App’lt.

(New York Common Pleas, General Term,

Filed February 10, 1890.)

Headnote

Municipal corpobations—Negligence—Snow and ice.

In an action to recover damages sustained by reason of injuries to plaintiff’s wife, caused by falling upon ice or hard snow on one of defendant’s sidewalks, it appeared that Ipss than forty-eight hours had elapsed between the snow fall and the accident. Held, that a reasonable time had not elapsed sufficient to charge defendant with negligence in not causing the walk to be cleaned, or to charge it with constructive notice that it was, slippery and dangerous, and the complaint should have been dismissed.

Appeal from, judgment in favor of plaintiff, entered on verdict, and from order denying motion for a new trial.

Action to recover damages sustained by plaintiff by reason of injuries received by his wife from falling upon ice at the corner of Carlisle and Greenwich streets in the city of New York.

The trial resulted in a judgment for $500.

Edward E. Hawlce, Jr., for app’lt; Louis J. Grant, for resp’t

The learned trial judge stated, in his charge to the jury, certain of the conceded facts in this case as follows:

“ It appears that Mrs. O’Connor fell on this ice or hard snow on the corner of Carlisle and Greenwich streets. It appears that, for ten or twelve days before the 25th of January there had been no considerable snow storm; in fact, as the sergeant of the signal service said, there had been only two small flurries of snow. Then on the 25th there was a snow fall, and then it changed to-rain, and then there was snow and rain, and these followed by sleet, and about half past two on the morning of the 26th of January the storm ceased. Then the temperature fell very low from that time forward down until the time of the accident, and afterwards the temperature was never above the freezing point it was always down below and never above the freezing point Well, the 26th passed and the 27th came, and on the evening of the 27th, about 7 o’clock, she fell.”

The doctrine has been established by a number of recent cases that, while the obligation to keep the sidewalks reasonably free-from snow and ice rests upon a municipal corporation, it shall nevertheless be allowed a reasonable time for the performance of such duty. Taylor v. The City of Yonkers, 105 N. Y., 202 ; 7 N. Y. State Rep., 332; Kinney v. The City of Troy, 108 N. Y., 567 ; 14 N. Y. State Rep., 15; Kaveny v. The City of Troy, 108 N. Y., 571 ; 14 N. Y. State Rep., 18.

Where the facts are uncontradicted,. the question as to what constitutes a reasonable time is a question of law to be decided by the court. Wright v. Bank of the. Metropolis, 110 N. Y, 237

p. 503

18 N. Y. State Rep., 92; Colt v. Owens, 90 N. Y., 368 ; Hedges v. H. R. Railroad Co., 49 id., 223.

The facts here were so clearly uncontradicted that the trial judge stated them to the jury in ms charge. Such facts bring the case at bar clearly within the authorities above cited. The period between the snow-fall and the accident was less than forty-eight hours, and we think, as matter of law, that a reasonable time had not elapsed either to presumptively charge the defendant with negligence in not causing the walk to be cleared, or to charge it with constructive notice tjiat the walk was slippery and dangerous. It follows that there was not sufficient evidence to support the verdict. There was really no more to go to the jury in this case than in Kinney v. City of Troy, supra, and the complaint should have been dismissed.

The judgment appealed from should be reversed and a new trial ordered, with costs to appellant to abide the event.

Bookstaver and Bischoff, JJ., concur.