Kling v. City of Buffalo — 55 N.Y. St. Rep. 241

Majority

p. 241

Lillie Kling, Resp’t, v. The City of Buffalo, App’lt.

(Supreme Court, General Term, Fifth Department,

Filed October 20, 1893.)

Headnote

1. Municipal corporations—Negligence—Snow and ice.

While city authorities are required to be reasonably vigilant in keeping the sidewalks in proper condition, they arc not expected or required to do what is practically impossible, remove snow and ice in this climate from the sidewalks immediately after it falls or forms.

3. Same—Contributory negligence.

Where, in an action against a city for injuries caused by falling on an icy sidewalk, it appeared that plaintiff knew of the condition of the ice and deliberately walked on it, when she could have passed along the side in safety, Held, that plaintiff was guilty of negigence contributing to her injury and could not recover.

Appeal from a judgment entered in Erie comity in favor of the plaintiff against the defendant for $1,140.97, and from an order denying a motion for a new trial on the minutes. The action was for the recovery of damages sustained by the plaintiff in falling upon a sidewalk in the city of Buffalo.

Philip A. Laing, for app’lt; Wallace Thayer, for resp’t,

Giving to the evidence the most favorable construction for the plaintiff it will bear, it fails, we think, to sustain the recovery. The accident happened upon the sidewalk upon the northerly side of Swan street between Main and Washington streets on the -Í7th day of February, 1892, at 11:30 in the morning, by the plaintiff falling upon ice on the walk and fracturing her arm. The negligence complained of was in permitting the snow and ice to accumulate and lay upon the sidewalk. There was perhaps evidence enough to show that the ice had remained a sufficient length of time to constitute constructive notice to the defendant.

The evidence tended to show that daring the month of January and the fore part of February a large amount of snow fell in the city of Buffalo. Nearly four feet of snow fell in the month

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of January. The streets and sidewalks all over the city were during that month and the early part of February more or less covered with snow and ice. The amount of snow was so large that the householders were somewhat neglectful of their duty m removing it from the walks. The weather in the fore part of February, and up to the time of the accident, was very changeable. There was snow, sleet and rain, sometimes thawing and freezing in the same day. About one and one-half inches of snow fell on the 11th of February, accompanied with wind, which drifted the snow considerably. On the 14th of that month a small amount of wet snow and rajn fell and froze as it fell, forming ice and making the walking all over the city very difficult. It continued to freeze on the 16th and 17tli of the month. The sidewalk at the place of the accident was eight feet in width. ' Its condition is variously described by the witnesses. The plaintiff testified that the whole sidewalk at the place of the accident was icy; was hard ice and no snow upon it; that there was a ridge of ice three or four inches thick in the center; that it was an inch or two inches higher in the center than at the sides, sloping off to the right and left Salena Weldorf, who was walking with the plaintiff at the time of the accident, testifies that there was some ice. She did not know how thick, but it only covered a part of the width of the sidewalk; and that there was a path near the curbstone sufficiently wide to walk upon where there was no ice. The ice was hard and solid, looking like glass.

The witnesses called by the defense testified that.there had been a pathway cut through in the center of the walk sufficiently wide for two persons to walk abreast that was substantially free from ice. The evidence fairly established that there was at the place where the accident happened smooth ice upon a portion of the width of the sidewalk some three or four inches in thickness and sloping very slightly to the sides of the walk. "

It was established upon the trial that the winter of 1892 was-an unusually severe one, and that the sidewalks in the city the greater part of the winter were covered with snow and ice, rendering the walking difficult. The frequent and sudden changes in the weather made it practically impossible to keep the many miles of sidewalk in the city free from snow and ice. To accomplish such a task it would have required an amount of labor and an expenditure of money not to have been expected or required of the municipality under the circumstances. While the city authorities are required to be reasonably vigilant in keeping the sidewalks in proper condition, they are not expected or required to do what is practically impossible, remove the snow and ice in this climate from the sidewalks immediately after it forms.

The ice at the place of the accident was smooth, the surface of it was practically level with a slight elevation in the center. The sidewalk at the place of the accident was, without much doubt, in better condition than most of the sidewalks in the city at the time. It was a thin covering of ice such as may be expected in case of frequent changes in the weather

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in winter. The occupant of the premises adjoining understood it to be his duty to keep the sidewalk free from ice. He testified that he did so as far as he could, and frequently sprinkled it with sand or asheS during the winter of 1892.

To hold the city liable for negligence in this case would impose upon it the duty of keeping all of the sidewalks in the city free from snow and ice during the inclement winters of this climate. It is a matter of common observation, that during such weather all the sidewalks of the city are covered to a greater or less extent with snow and ice. And in case of rain or thawing followed by freezing weather, the whole city is covered with ice.

It was held in Taylor v. The City of Yonkers, 105 N. Y., 206 ; 7 St. Rep., 332 , that in such emergencies the corporate authorities may wait without negligence a change of temperature which will remove the danger.

The plaintiff fully understood and comprehended the condition of the ice before she attempted to pass over it. All the information she had upon which she based her testimony as to the condition of the ice she acquired by looking at it before she fell. She knew about its thickness; that the center was somewhat elevated above the sides; that it was smooth, and deliberately walked upon it, when, if the testimony of the witness who accompanied her was correct, she could have passed along the side of it with safety. It was not a case of walking upon ice in the night time, or when it is covered with snow so that its true condition is not known. Understanding," as she did, the situation, she must be held to have been guilty of negligence contributing to her injury.

We think the plaintiff failed to make a case, and that the judgment and order appealed from should be reversed, and a new trial granted, costs to abide the event.

Dwight, P. J., and Haight, J., concur.