Opinion
May 29, 1914.
Terence Farley [ Leon N. Futter with him on the brief], for the appellant.
Nathan D. Stern [ Julius J. Michael with him on the brief], for the respondent.
At about seven o'clock in the evening of the 9th day of February, 1912, the plaintiff, who resided at 306 East One Hundred and Sixteenth street, was walking westerly on the southerly sidewalk of that street, and when in front of No. 202 East One Hundred and Sixteenth street, she suddenly slipped and fell, sustaining injuries, to recover damages for which this action was brought. The only charge of negligence made against the defendant is in failing to remove snow and ice from the walk; and the only testimony with respect to the condition of the snow and ice was given by the plaintiff and a member of the police force. About two hours after the accident the officer accompanied the plaintiff from the hospital to the scene of the accident, which was in front of a shoe store where the sidewalk was from eighteen to twenty-two feet in width. The plaintiff says that she fell about the middle of the walk; but the officer says that she pointed to a place about four feet from the curb. She says there were numerous "clumps" of ice on this part of the walk, some of which were from two to three inches thick and corrugated on the surface, and one foot in diameter. She and the officer agree that at all other points the sidewalk was free and clear of snow and ice; and he testified that the only ice on the walk was small patches, the largest of which was about nine inches in diameter, and that extended inward from the curb a distance of only five or six feet, and that it was thin, as if formed by the freezing of water splashed on the walk. She says it was discolored by dust and appeared to be the same color as the walk, and he says that this discoloration was caused by ashes on the surface, but that she denies. The officer in charge of the weather bureau testified from the official records that, with the exception of traces of snow too light to be recorded, no snow fell between the twenty-ninth day of January and the time of the accident, excepting on the fourth day of February when, according to the official records made at the lower part of the island of Manhattan, one and eight-tenths inches of snow fell, and, according to the records made in Central Park, two and five-tenths inches fell; and he says that this was wet snow and would form ice if tramped down, and that from the time of this storm, and for some days before, until after the accident the temperature remained below freezing, with the exception of a few hours on the seventh day of February, when it reached the maximum of thirty-five degrees. This is the substance of the material evidence. It utterly fails to meet the burden resting on plaintiff of showing that there was an accumulation of ice and snow on the walk constituting an obstruction dangerous to public travel, of which the city had actual notice, or which had existed for such a length of time that the city had constructive notice thereof in time, in the exercise of reasonable diligence, to take steps to protect the public against the danger. ( Adelson v. City of New York, 156 App. Div. 115, and cases cited.) The defendant's motion for the dismissal of the complaint should have been granted, and on the exception to the denial thereof the judgment and order should be reversed, with costs to appellant, and the complaint dismissed, with costs.
INGRAHAM, P.J., McLAUGHLIN, DOWLING and HOTCHKISS, JJ., concurred.
Judgment and order reversed, with costs, and complaint dismissed, with costs. Order to be settled on notice.