
    Silvanus McPherson, Respondent, v. The City of Buffalo, Appellant.
    
      Negligence of a passenger—the use of a slippery sidewalk presents a question for the jury — notice to a city — negligence of a city in allowing an accumulation of ice and snow upon a sidewalk in violation of an ordinance.
    
    A passenger upon a street has a right to use the sidewalk of a municipality, although knowing that it is in an unsafe condition; and if injured while so-doing, a question is presented for the jury whether he was guilty of carelessness which contributed to the injury
    Where, in an action brought to recover damages for the alleged negligence of a municipal corporation,, the proof tends to show that, in violation of the provisions of a city ordinance requiring an owner or occupant to remove, before nine o’clock in the morning, all snow and ice which might have fallen upon the sidewalk in front of his premises, an accumulation of ice and snow at least nine inches in thickness had been permitted to remain upon the sidewalk in question, at the point where the accident happened for a sufficient time before-the accident to charge the city with notice thereof, the question as to the negligence of the municipality should be submitted to the jury.
    Appeal by the defendant, The City of Buffalo, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 30th day of April, 1896, upon the verdict of a jury for $615.50, and also from air order entered in said clerk’s office'on the 2d day of .May, 1896, denying the defendant’s motion for a new trial made upon the minutes;
    
      On the 23d of February, 1895, about eight o’clock in the evening, while plaintiff was walking along on the sidewalk on the south side of West Ferry street, between Delaware avenue and Elmwood avenue, plaintiff alleges he was thrown down and received severe injuries to his coccyx, and that he was laid up some five months and has not permanently recovered, and that he made expenditures of over $200, endeavoring to be cured.
    The answer contains several denials and an averment that the injuries mentioned in the complaint “ were caused by his own carelessness and negligence and not by or through any fault or negligence on the part of the defendant.”
    
      Charles L. Feldman, for the appellant.
    
      William L. Jones, for the respondent.
   Hardin, P. J.:

To sustain the allegations of the complaint the plaintiff produced evidence tending to show that there was an accumulation of ice and snow along the walk at the point where he received the injury of which he complains. The evidence relating to the condition of the walk is very similar to that produced at the Circuit held by inc where the case of Evans v. The City of Utica (69 N. Y. 166) was on trial. In that case it was said by the Court of Appeals, viz.: “ The question whether the plaintiff was chargeable with contributory negligence was a question of fact which was properly submitted to the consideration of the jury.” In that case it was claimed that the plaintiff was notified of the condition of the walk before passing over it, and in respect to that aspect of the case the opinion in the Court of Appeals observes : “Assuming that he was notified, the inference by no means follows that the plaintiff was negligent. * * * ' As the case stands, it cannot be properly urged that, as a matter of law, contributory negligence- was manifest so as to justify a nonsuit. Nor is there any ground for claiming that the danger of passing over the ice was so apparent that the plaintiff had no right to proceed after he discovered the condition of the walk.”

In Smith v. Ryan (29 N. Y. St. Repr. 672) it was held: “ It is not negligence per se for a person knowing the defective condition of a sidewalk to pass over it; in doing so he is only required to exercise the care and caution which a person of ordinary prudence would exercise in like circumstances.”

In Pomfrey v. Village of Saratoga Springs (104 N. Y. 460) it was said, viz.: “ The evidence tended to show that this embankment of snow and ice was perfectly visible; there was a light covering of recent snow over the ice,” and it was held, “ A refusal of the court to .charge as matter of law that it was negligence for plaintiff,under the circumstances, to attempt to pass over the embankment was not error.”

In Bullock v. The Mayor (99 N. Y. 654) it was held that “A passenger upon a street has a right to use its sidewalk, although knowing it is in an unsafe condition, and, if injured,'it is a question for the jury whether he was guilty of any carelessness which contributed to the injury.”

In Goff v. The Village of Little Falls (47 N. Y. St. Repr. 729) it appeared that snow had been allowed to accumulate to the depth of three inches, and it also appeared that, on the day of the accident, there had been storm and sleet covering the sidewalk with a coating of ice, and it was held that the proofs justified the submission of the question of the defendant’s negligence to the jury;" and, also, as stated in the" language of Mabtin, J., viz.: “ We are also of the opinion that the question whether the plaintiff was guilty of contributory negligence was, under the evidence, a question for the jury, and the court could not have properly held as a matter of law that the plaintiff was negligent.” (Citing numerous cases.)

In the course of the opinion delivered in Sherman v. The Village of Oneonta (49 N. Y. St. Repr. 267; S. C. affd., 142 N. Y. 637) it was said : “ We are of the opinion that, upon all the evidence, the question whether the plaintiff was guilty of contributory negligence was for the jury. "The plaintiff had a right to assume that all parts of the street intended for travel were reasonably safe, as the defendant was under an absolute duty to keep its streets in a reasonably safe condition for public travel; and was bound to exercise reasonable diligence and care to accomplish that end. We are of the opinion that the trial court properly refused to take from the jury the question whether the plaintiff was free from contributory negligence, and also properly refused to set aside the verdict upon that ground.”

In the case in hand, the evidence which was offered in behalf of plaintiff upon the question of his prudence and care at the time he received the injuries, was such that, within the principles and authorities which we have referred to, we are of the opinion that the trial court was called upon to submit the question of the plaintiff’s freedom from contributory negligence to the jury, and that their verdict in that respect ought not to be disturbed.

(2) Upon the question whether the defendant was guilty of negligence which caused the injuries' received by the plaintiff, or not, we think there was evidence given upon the part of the plaintiff tending to' establish that the defendant had been derelict in its duty in respect to the street at the point where the plaintiff received the injuries. Two or three days after the injury one witness testifies that he examined the walk at the point where the accident occurred and found nine inches of ice. Several other witnesses detail the circumstances relating to the condition of the walk tending strongly to indicate that it was left in an unsuitable condition for a period of time sufficient to attract the attention of the city authorities. True, there is evidence given on the part of'the defendant which, to some extent, tends to mitigate, as well as contradict, the evidence offered by the plaintiff, and, under the circumstances disclosed in the evidence, we are of the opinion that the trial judge committed no error in submitting the question as to the defendant’s negligence to the jury, and that their verdict is sustained by evidence warranting the conclusions reached by the jury. The evidence, in the case in hand differs quite essentially from the evidence and circumstances disclosed in Durr v. Village of Green Island (71 Hun, 260).

And the case in hand differs very essentially in its facts from Kinney v. City of Troy (108 N. Y. 567). In that case it appeared that three days before the accident the sidewalk was all right; and in the course of the opinion in that case it was said: “ But here there was no accumulation, and it can scarcely be said there was unevenness at the place of the accident. * * * It does not appear that ordinary care had not been exercised to keep the walk safe for use in the usual mode by travelers, nor that it was not so.”

We think that the case in hand differs from Harrington v. City of Buffalo (121 N. Y. 147). In the course of the opinion delivered in. that case it was said: “ The proof fails to show that there was any unusual or dangerous obstruction to travel arising from snow of ice in the street, or, even if there was, that any such lapse of time had intervened between the period of its creation and the occurrence of the accident as afforded a presumption of knowledge in the municipality of its condition, or opportunity to remove the obstacle after notice was received.”

Clifford, a witness called for the defendant, and who was its street inspector, said that West Ferry street was a part of his district, and that he knew where the vacant lot was on the south side of West Ferry- street where the man is supposed to have fallen, and he says that it was clear prior to the first of 'February, and on 'the twenty-ninth of January, and on the sixteenth of January, and. on the fifteenth of January, and on the second of January, and that his duty took him there very frequently, and that he observed it, and he testified, viz. : “This is report No. 13,779. That is what I wrote on that report.' This is 13,816. That is my signature. That is for February -9tli. The path was bad and packed in very hard.”

The witness Coppins testified that on the twenty-seventh of February he went to the place where the accident occurred and cut through the ice into the sidewalk to see how deep it was. He says: “ I found nine inches of thick ice. I observed the condition of the sidewalk when I went up there to cut on the 27th. It was all solid ice. It had thawed so .there was nothing remaining but ice. The path was the width of the sidewalk. The first morning, the morning of the 25th, I was there and saw where the snow had been trampled. That is the way I came to find the -place. When I cut this thick ice through here the ice covered the sidewalk for the whole width.- It was packed more; it was not in the -middle exactly where the width was; it was a little more sloping on the sides. There was no light snow. * * * On the first day I went there there was greater thickness. I presume it was twelve to eighteen inches, possibly; ice and snow together. It had thawed during the 24th and 25th.”

The witness Davidson, who went up to the place of the accident with Coppins to see the sidewalk and to measure the snow or ice, testified: “ I found nine inches- of ice on. the sidewalk iii front of these lots. It had been thawing for a number of days before that, for two or three days. No snow had fallen, for the two or three days since the accident, since the 23d.”

Other evidence was given tending to show the neglected condition of the sidewalk, and' we think the evidence was sufficient to call upon the court to submit the question of the defendant’s negligence to the jury. It appeared in evidence that the city had ordinances imposing upon adjacent owners the duty of keeping the sidewalks in a suitable condition. The 14th section of the city’s ordinance is as follows: “ It shall be the duty of every owner or occupant of any premises fronting on any public street or alley to remove before nine o’clock in the morning all snow and ice which may have fallen upon the sidewalk in front of said premises. In case said sidewalk is not planked, flagged or paved its full width, it shall be necessary to remove such snow and ice only from a space of three feet in width.” The 15tli section provides: “ In case of neglect or refusal of any owner or occupant to comply with the provisions of. the foregoing sections, he shall pay a fine of not less than $5.00. It shall be the duty of the bureau of streets to see that the provisions of this section are enforced, and in all cases of its violation it shall be the duty of the superintendent of streets to employ men to do the said work at a price not exceeding twenty-five cents per hour.”

The evidence in the case before us quite clearly indicates that in regard to the street in question, the city neglected to enforce an observance of the ordinances, or to keep the sidewalk in such a condition as to comply with the tenor of the requirements found in .the ordinances to which we have referred. - s'

In the body of the charge the learned Ji’ial Jndge^ummtted the questions of fact carefully to the jurv^tmd we have discovered no-error committed by him in dealiqg with the several requests that were submitted to -him, most which, if yielded to, would have required the judge to repeat.portions of his charge.

. It is stated in the cage, viz.: “No question is raised as to the amount of the verdict,-and the evidence bearing on the extent of the plaintiff’s injuries is left out.” (Folio 29.)

The judgment and order should be affirmed, with costs.

All concurred.

Judgment and Order affirmed, with costs.  