Safford v. Village of Green Island — 56 N.Y. St. Rep. 269

Majority

p. 269

Ellen Safford, App’lt, v. The Village of Green Island, Resp’t.

(Supreme Court, General Term, Third Department,

Filed December, 1893.)

Headnote

Negligence—Cause.

Under an allegation that the injury had been caused by reason of the negligence of the defendant in allowing a ridge to remain across the sidewalk in the village, the plaintiff must establish, in order to recover, that the accident would not have occurred hut for the presence of such ridge.

Appeal from a judgment in favor of the plaintiff.

Edward W. Douglass, for app'lt; Smith & Wellington (George B. Wellington, of counsel), for resp’t.

It appears in this case that a ridge had been formed across the sidewalk by excavating to put in a water pipe, and the earth afterward filled in had not been sufficiently packed down, but formed a ridge from four to six inches in height; this ridge was covered with ice, and in the language of the plaintiff’s daughter “ So that the ridge was slippery, glary, glassy; it was clear ice, glassy ice; shiny like the surface of glass, and very slippery.”

The thermometer had been below zero for some days prior to the accident in question, and the streets of the village were generally slippery.

It is impossible to determine from the evidence whether the plaintiff would or would not have fallen except for the ridge upon the sidewalk; the jury could have merely guessed whether it was the ridge or the ice, or both combined, that caused the accident.

The, defendant was not responsible for the slippery condition of the sidewalk, or for the ice upon the ridge, and such being the case, and the plaintiff not establishing that the accident would not have occurred but for the presence of the ridge she was not entitled to recover, and the nonsuit was proper. Taylor v. City of Yonkers, 105 N. Y., 202 ; 7 St. Rep., 332 ; Hunter v. N. Y. O. & W. R. R. Co., 116 N. Y., 615 , 24; 27 St. Rep., 729 ; Grant v. P.& N. Y. C.& R. R. Co., 133 N. Y., 657 ; 45 St. Rep., 303 .

The judgment should be affirmed, with costs.

Mayham, P. J., and Putnam, J., concur.