O'Connor v. Mayor of New York — 30 N.Y. St. Rep. 431

Majority

p. 431

Thomas O’Connor, Resp’t, v. The Mayor, etc., of New York, App’lt.^[1]

(New York Common Pleas,

General Term,

Filed April 7, 1890.)

Headnote

Municipal corporations—Negligence—Snow and ice.

The question whether a municipal corporation had notice of a dangerous accumulation of ice and snow on a sidewalk is of no importance when it appears that there was no reasonable opportunity to remove it between the time of its first appearance and the happening of the accident. In such case, even if it had actual notice, it would be absolved from the imputation of negligence.

Motion for reargument of appeal.

Louis J. Grant, for resp’t; Kdw. JL. Hawke, Jr., for app’lt

Counsel for respondent assumes that the opinion of the January general term herein directing a reversal of the judgment appealed from was predicated upon defendant’s want of notice, actual or constructive, prior to the happening of the accident complained of that the sidewalk was in a dangerous condition, and that the court inadvertently overlooked that testimony of thé defendant’s police officer who admitted upon the trial that the condition of the sidewalk was known to him some time before the accident. No other ground for reargument is assigned.

A careful examination of the opinion referred to must be convincing that the reversal was directed upon the grounds that a municipal corporation is not chargeable with neglect in permitting its streets to be in a dangerous condition in the absence of proof that there was reasonable time to render such streets safe; that the question whether or not there was such reasonable time is a question of law to be determined by the court; that the uncon

p. 432

tradicted facts in the present case, showing an interval of loss than forty-eight hours between the cessation of the snow-fall and the time of the accident, failed to show that defendant had a reasonable time within which to remove the accumulated ice and snow or otherwise to render the sidewalk in safe condition; that because of the want of such reasonable time the plaintiff had failed to establish negligence on the part of defendant and that it was error for the trial judge to submit the question of defendant’s, negligence to the jury.

This view renders the question of notice of no importance in this case, for if it be conceded that defendant had actual notice of the dangerous accumulation of ice and snow on the sidewalk in question, defendant must nevertheless be held absolved from the imputation of negligence if there was no reasonable opportunity to remove the danger between the time of its first appearance and the happening of the accident.

The motion for reargument must be denied, with costs.

Larremore, Oh. J., concurs.