Keane v. Village of Waterford — 41 N.Y. St. Rep. 291

Majority

p. 291

Ann Keane, Resp’t, v. The Village of Waterford, App’lt.^[1]

(Court of Appeals, Second Division,

Filed December 1, 1891.)

Headnote

1. Negligence—Snow and ice.

In an action brought against defendant for damages for personal injury, there was evidence that there was a ridge of snow and ice which had been there a week, extending lengthwise of the walk, which was four or five inches thick and sloping either way from the top of the ridge; that it was this ridge that caused plaintiff to slip and fall. Defendant claimed that the ridge was caused by drippings from the piazza of a hotel. Held, that there was no error in the refusal of the court to nonsuit.

2. Same—Evidence.

In an action for injuries sustained by plaintiff’s falling upon an icy sidewalk, followed shortly after by rectocele, the judge properly submitted to the jury the question as to whether it was occasioned by her fall, although a physician testified that childbirth was an adequate and the usual cause of the rectocele, and that he had not known of a case where a rectocele was occasioned by a fall other physicians testifying to the contrary.

Appeal from a judgment of the general term of the supreme ■court, third department, affirming a judgment entered upon a verdict.

N. C. Moak and Thomas O' Connor, for app’lt; J. F. Crawford, for resp’t.

This action was brought to recover damages for a personal injury.

On the 23d day of January, 1886, the plaintiff, whilst walking with her daughter-in-law upon the sidewalk on Broad street, in the village of Waterford, slipped and fell, receiving the injuries for which the jury has awarded damages.

The accident occurred nearly in front of the bar room door of the Worthington hotel, at about seven o’clock in the evening, and after it had become dark. There is some conflict as to the ■condition of the walk, but all agree that it was slippery.

It is claimed on behalf of the plaintiff that there was a ridge of snow and ice extending lengthwise of the walk which was four or five inches thick, and that it sloped either way from the top of the ridge ; that it was this ridge that caused her to slip and fall. Whilst on the part of the defendant it was claimed that the ridge was composed of ice which was formed from water dripping from the roof of the piazza in front of the hotel.

Considerable evidence was given in support of this contention. The trial court charged the jury that if the ridge was of ice formed from the drip from the roof of the piazza the defendant was not liable. Of this charge the appellant does not complain. It is claimed to be in accordance with the rule laid down in the case of Kaveny v. The City of Troy, 108 N. Y., 571 ; 14 St. Rep., 18 . Whether it is or not we do not now deem it necessary to consider, for the jury found a verdict for the plaintiff, and must therefore be deemed to have found that the ridge was not so formed, and whilst we might have reached a different conclusion had we been called upon to determine the

p. 292

fact in the first instance, we are of the opinion that there is evidence which supports the verdict in this regard. It appears that, in the early part of the month, between the 5th and 8th, there was quite a heavy fall of snow; that again on the 19th of the month there was a fall of nearly eight inches. The witness, Thomas Cramer, testified that the ridge was five or six inches-high and was formed by snow; that it was uneven and very slippery; that it had been there about a week before she fell; that it was formed of snow packed down and glazed over with rain; that it had never been touched; that it was formed in part from the snow that fell during the last storm, and in part, from that which fell during the first storm.

This evidence is in accordance with the verdict and renders unavailing the exceptions taken to the refusal of the court to non-suit.

It is also claimed that the court erred in submitting to the jury the question as to whether the rectocele from which the plaintiff was found to be suffering was occasioned by her fall, but we think the question was one for the jury. It is true that one of the physicians testified that childbirth was .an adequate and the-usual cause of rectocele, and that he had not known of a case where a rectocele was occasioned by a fall. But the other physicians differ with him in this regard. Dr. Stubbs testified that prolapsis of the posterior vagina wall, senile atrophy, violent muscular efforts of the abdominal muscles, a fall or an attempt to save one’s self from a fall, may produce rectocele. It is our duty to consider this evidence in connection with the fact that, rectocele was discovered shortly after the plaintiff received her injury ; that none had existed before, and that all of the symptoms following the injury were such as to indicate its existence.

Exceptions were taken to the refusals to charge as requested, but there are none which we think require a new trial. They have been considered by the general term, and further discussion we do not consider necessary.

The judgment should be affirmed, with costs.

All concur.