
    Mary Harrigan, Resp’t, v. The Village of Hoosick Falls, App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed May, 1888.)
    
    Negligence—Under what circumstances defective condition of a STREET CANNOT BE ATTRIBUTED TO THE NEGLIGENCE OF A MUNICIPAL CORPORATION.
    This action was brought to recover damages for injuries received by the plaintiff by falling upon an icy sidewalk in the defendant village, _ Meld, that the sllippery condition of the walk to which the plaintiff’s injuries were due, being occasioned by a sleet storm on the previous night, could not be attributed to the defendant’s negligence.
    Appeal from a judgment for the plaintiff, entered upon the verdict of a jury upon the trial at the Rensselaer ounty court.
    The action was to recover damages for injuries sustained by the plaintiff .by falling upon an icy sidewalk in the village of Hoosick Falls.
    
      Strand & Greene, for resp’t; Henry A. King, for app’lt.
   Landon, J.

The plaintiff while walking in a funeral procession on the south sidewalk of John street in the village of Hoosick Falls, just east of the intersection of this street with Church street, in front of Mr. Mason’s store, fell and broke her arm.

There was ice on the walk from three to five inches thick, and had been for a greater part of the winter. The plaintiff slipped and fell. She does not attribute her fall to any peculiar formation of the ice. She testified it “ was very icy, very bad ice there.’ _ “I saw it was an awful bad place, I mean by bad place, icy place.”

Rich, a witness for plaintiff, testified: “ I did not see anything peculiar about this ice; it was rather smoother than common.” Wright testifies that the walk was in “a very bad condition, very icy; the ice was very uneven.” Harri.gan, a son of plaintiff, testified that the walk was “ covered with ice, rough, and very rough ice at that.” Peters testified the walk was “ icy and slippery; I can’t remember anything peculiar about the formation of the ice; nothing different from other parts of the village; nothing particular there.” Mary Fora was walking with plaintiff when she fell; she took no particular notice of the condition of the ice; “nothing more than it was very slippery there and very icy.” Mary Condon was also next to plaintiff when she fell; “ it was very icy there; there was a very little snow on the ice.”

The gutter along the walk was not open, and was filled with ice. Testimony was given to the effect that Mason, who kept the store which opened upon this walk, usually kept the walk swept and sprinkled with ashes or saw-dust, when it was slippery. ISTo attempt was made to cut off or remove the ice. Rich, a witness for the plaintiff, and a clerk in Mason’s store, testified “there is ice there all the time in the winter; the sidewalk is such that it cannot be kept off; whenever new ice formed, I put on ashes.” Peters, one of "the witnesses for plaintiff, testified “ that all the streets were very slippery that Sunday; we were amused all day by seeing people slip and slide.” Sibley, a witness for the defense, testified that “the streets were slippery all over town this Sunday, caused by the sleet of the night before.” Gaffney, a witness for the defense, testified that he attended the “wake” on Saturday night of the person whose funeral the plaintiff attended on Sunday, and that at 12:45, Saturday night, when he left the wake, there was a sleet storm. Myers, a witness for the defense, referring to a diary which he kept, testified that it was “ very cold and very slippery ” on that Sunday; that it rained on the Friday previous. There is no attempt to contradict by one witness any statement made by any other.

The court charged the jury that if the slipperiness of the walk which caused the plaintiff’s fall was caused from the storm of the night before, the plaintiff could not recover; if •caused by the rain of Friday and the subsequent cold, it was a question for the jury whether the village had notice of the condition of the walk ; that the court could not say, as a matter of law, that after the lapse of forty-eight hours the village ought not to have found it out and removed it. It seems to us that the uncontradicted evidence in this case .shows that this walk was covered with sleet by the storm

of Saturday night, and that its extreme slipperiness was owing to that cause, and, therefore, within Taylor v. City of Yonkers, 105 N. Y., 202 ; 7 N. Y. State Rep., 332, the defendant was not liable. The walk is not shown to have-previously been left in such a condition from want of ashes, salt or sawdust, or from irregularity of surface, as to have-contributed to the plaintiff’s fall.

The evidence does not justify a finding that the sidewalk had been, previous to the Sunday upon which the plaintiff fell, in the slippery condition in which it was on that day, but tends to show that it had been kept reasonably safe and convenient for the public travel. The testimony is undisputed that the street^ all over the village were unusually slippery on that Sunday, and there is no evidence that the-same condition existed upon the days immediately preceding.

We conclude to reverse the judgment and grant a new-trial ; but as the error is on the part of the jury, we conclude to require the defendant to pay the costs of the trial below and of this appeal.

Learned, P. J., and Ingalls, J., concur.  