Opinion
June 27, 1939.
Action to recover damages for personal injuries sustained by plaintiff by reason of a fall upon an icy portion of a sidewalk or driveway. Judgment for plaintiff reversed on the law and the facts and a new trial granted, costs to abide the event. The theory of the plaintiff's case was that he had fallen on an inch or an inch and a half layer of black ice, in existence for about a week, and which had been exposed by the removal of the snow, the falling of which ended eighteen hours before the accident. In the submission of the issue of fact to the jury it was not made clear in the charge of the court that the City could not be held liable if the plaintiff fell upon snow or ice which was due to the snowstorm that ended on February 1, 1934, at midnight ( Kelly v. City of New York, 257 App. Div. 863 [2d Dept.], decided May 29, 1939), eighteen hours having elapsed between the ending of that storm and the happening of the accident. It was not made clear to the jury that the only basis upon which liability might be fastened on the City was in the event that the jury found that on February first snow had been removed and an old, dangerous condition of ice exposed, and that such dangerous condition had existed for a period of time that fairly charged the City with knowledge thereof. The question was a close one, in view of the weather report, whether such a condition did exist for a period of time that would charge the City with liability because of the extent of the precipitation that had occurred during January and the temperatures which prevailed during that same period. The interests of justice require a new trial so that a submission of the issue of fact may be had under more pointed instructions to the jury. Lazansky, P.J., Hagarty, Carswell, Taylor and Close, JJ., concur.