Opinion
April 4, 1913.
Harry Crone [ Terence Farley with him on the brief], for the appellant.
Alexander Fox, for the respondent.
Between the hours of seven and eight o'clock in the morning on the 18th day of January, 1910, the plaintiff, while lawfully walking northerly on the easterly sidewalk of Fifth avenue, between One Hundred and Seventh and One Hundred and Eighth streets, opposite a vacant lot, slipped on ice and snow and fell, sustaining injuries for which he has recovered.
The evidence adduced by the plaintiff tends to show that the walk had been neglected and that no snow had been removed therefrom that winter, and one witness testified that he saw ice on the walk about a month prior to the accident, and that "there has always been ice and snow there, all through the winter." A storm which had continued for thirty-three hours ceased at nine o'clock in the morning on the fifteenth day of January, and during the storm fifty-seven one-hundredths of an inch of rain and ten inches of snow fell. The officer in charge of the United States Weather Bureau testified that the snowfall and condition of the weather had been such prior to the commencement of that storm that, if not affected by artificial causes, there would have been three-tenths of an inch of snow on the ground; but, of course, he did not attempt to give the condition of any walk or street with respect to snow at that time. With this exception there is no evidence as to what extent snow had fallen prior to the accident during that winter.
The evidence shows that the snow which fell during this storm was trampled down by pedestrians and that considerable ice had formed on the walk, and that it was discolored and presented the appearance of having been there for some time, and that the surface had become somewhat rough and uneven. The maximum and minimum temperatures are not shown, but it appears that the mean temperature on the first day of the storm was twenty-four and seven-tenths degrees, and that on the fifteenth it was twenty-two and seven-tenths degrees, and on the sixteenth twenty-four degrees, and on the seventeenth thirty and two-tenths degrees, and that at seven and eight o'clock on the eighteenth it was forty degrees, and had been thawing all the morning, and at the time of the accident a drizzling rain was falling. It thawed and rained the day and night before the accident. The evidence shows that the temperature was such that if ice had been formed on the walk prior to the storm, which ended three days before the accident, it might have remained upon the walk when the storm commenced.
There is no evidence that the city had actual notice that the snow had not been removed from the walk, or that ice had formed thereon. An ordinance was introduced in evidence by the defendant showing that the city had imposed the duty, in the first instance, of removing snow from the walks upon the owners of the property abutting thereon; and doubtless it had constructive notice that the ordinance had not been complied with in this instance. The evidence does not show any other accident from the accumulation of ice and snow on this walk or tend to show a dangerous obstruction caused by ice and snow otherwise than as herein stated in substance.
We are of opinion that the evidence was wholly insufficient to charge the city with constructive notice that the snow which fell and accumulated and the ice which formed upon the walk created or constituted an obstruction dangerous to public travel which existed a sufficient length of time prior to the accident to enable it in the exercise of reasonable care to have removed the same, and, therefore, the plaintiff failed to make a case for the jury and the motion to dismiss the complaint at the close of the evidence should have been granted. ( Harrington v. City of Buffalo, 121 N.Y. 147; Owen v. City of New York, 141 App. Div. 217; Winckler v. City of New York, 129 id. 45; Foley v. City of New York, 95 id. 374.)
It follows that the judgment and order should be reversed, with costs, and the complaint dismissed, with costs.
INGRAHAM, P.J., McLAUGHLIN, CLARKE and SCOTT, JJ., concurred.
Judgment reversed and complaint dismissed, with costs. Order to be settled on notice.