
    Julia A. Macauley, Respondent, v. Catharine Schneider, Appellant.
    
      Action for personal injury — ice formed upon a sidewalk by water discharged from, an a/uming through a leader—duty of the city—liability of the constructor’— proximate cause of an accident — whether the discharge was negligent, or whether a nuisance existed, is a question of fact.
    
    The duty of maintaining the streets of a city in a reasonably safe condition for travel rests upon the city itself; but although the city may be liable, other persons who have contributed to the unsafe condition of the streets may also be liable for injuries resulting therefrom.
    
      A property owner who constructs an awning extending over the sidewalk in such a manner as to receive rain and snow and turn them through the gutter . into a. leader, at the foot of which water, liable in cold weather to freeze, is discharged upon the sidewalk, will be 'liable to the person who slips on ice ■thus formed. In the absence of authority therefor such a structure is unlawful .and constitutes a nuisance.
    In an action brought to recover damages, by a persgn who had fallen upon ice thus formed and sustained injuries, the court charged the jury that, if the plaintiff slipped on ice formed by the water running from the leader, the plaintiff’s case was made out. .....
    
      Held, that the charge was erroneous; ...
    .That, as the plaintiff was not injured by the structure itself (the awning or the leader), but in consequence of the discharge of water therefrom on the side- . walk, the case should have been submitted to the jury, either" as an action for ■ negligence — tó determine whether the mode of discharging the water'adopted ■ by the plaintiff was improper — the defendant being held liable only in- case the jury answered that question affirmatively, or as an action.for maintaining i a nuisance—j- the- question of the existence of the nuisance being left to the jury to be determined as a question of fact, after the jury had been instructed that if the defendant maintained the leader in such a position as to render the highway unsafe and dangerous to travelers, that constituted a nuisance.
    Appeal by the defendant, Catharine Schneider*, from a judgment of the Supreme Court, in favor of the plaintiff, entered in the office of the clerk of the county of. Kings on the 13th day of January, 1896, upon the verdict of a jury rendered after a trial at a. Trial Term of the Supreme Court held in and for the county of Kings, and also from an order entered in said clerk’s office-on the 13th day of January, 1896, denying the defendant’s motion for a new trial made, upon the minutes.
    
      Hugo Hirsh, for the appellant.
    
      Abram H. Dailey for the respondent.
   CuLLEK, J. :

This action is brought to recover damages for personal injuries sustained by the plaintiff, by falling Upon ice upon a sidewalk in the .city of Brooklyn. The complaint alleged that the defendant was the owner of the adjacent premises, and maintained an awning extending over the sidewalk, so constructed as to receive the falling rain and- snow and drain them through á gutter into a'leader, at the foot of which the water was discharged upon the -sidewalk; that in-cold weather it froze and became dangerous. On the trial the construction of the awning and leader was undisputed. The defendant contended that they were built by her tenant and that she was not responsible for them. The evidence, however,, was sufficient to require the court to submit this question to the jury. There was shown no . permission or authority from the city to' construct the awning or leader. The plaintiff gave evidence tending to show that she fell from slipping on some ice on the sidewalk at the foot of -the leader, and so received her injuries..

; When the plaintiff rested her ..case, and also at the close -of the whole evidence, the defendant moved to dismiss the complaint on the ground that the ..city alone, and not she,' was liable, for the injury. This- motion was denied. This ruling was correct. It is undoubtedly true that the duty of maintaining its streets' in a-reasonably safe condition, for travel rests upon the city, and for a failure to discharge that duty the. city 'is liable.. But though the city may be liable, it by no means follows that other persons who have' contributed to the unsafe, condition of the streets are not also liable. Here, if the awning and leader were so constructed as to render the discharge of water on the sidewalk dangerous to travelers, the person who erected such structure was an active-participant in the wrong andliable for it. The case is to be distinguished from those of Moors v. Gadsden (87 N. Y. 84) and Wenzlick r.McCotter (Id. 122). In the first case the defendant did nót contribute to the obstruction upon or dangerous condition of the sidewalk. ' He was the owner of the adjacent lot, and the natural grade of tlie premise's was such that the water .flowed from his land upon the sidewalk. It was held that he was not bound to change the natural condition of his property so as to prevent the water from flowing into the street. , In the second case the water was discharged on the sidewalk from a leader on the front or face óf an adjacent house. The defendant was held not liable, because he neither constructed the leader nor used it after construction. Nor is the principle-of The Citry of Rochester v. Campbell (123 N. Y. 405) applicable here. In that ease it was sought to make the abutting owner liable for injuries caused by the unsafe condition of the sidewalk, not on the claim that the defendant in any wise, by his affirmative act, contributed to that unsafe condition, but because he had failed to comply with the requirements of the city ordinance that he should remove snow and ice. The present case falls within that of Kirby v. Boylston Market Association (80 Mass. 219), where it was held that the. , defendant was liable for any nuisance in-the. public street to which it had contributed, but not liable for failing to comply with the cify ordinance which required .it to clear-the-sidewalk of snow and ice.

But though we think the plaintiff made put a case justifying its. submission ¡to the jury, we think it was submitted to- the jury upon an erroneous theory, and that the question is properly raised by the exceptions of the defendant. The court instructed the jury that.no . authority for the construction of the awning or leader upon the sidewalk having been shown, these. structures were unlawful and a nuisance. This, charge was correct, but the court further charged . that, if the plaintiff slipped on ice formed by the water running from the leader, the plaintiff’s case was made out. This, we think, . was incorrect. Doubtless, as the' leader and awning were in- the -public street, and, therefore, constituted.a'nuisance, the defendant (if she maintained them) would be liable to any traveler who was directly injured by them. But the plaintiff was.not injured by the awning or by the leader, but from the fact that the water discharged by the leader froze on the sidewalk. Therefore, there intervened between the. structures and the injury to the plaintiff another contributing cause, the falling and freezing of the water. . The water would have fallen upon the sidewalk had there been no awning, and, falling there, would have been liable to form ice. It is probably true that by collecting the water and discharging it in bulk at a -single place the liability to form ice and render the sidewalk dangerous was very much increased. But granting this,- then the cause that occasioned the. plaintiff’s-injury was not the existence of. the leader and awning in the highway as .obstructions thereon, but the collecting of water and discharging it upon the sidewalk. We see no difference between this case, where the rain first fell on the awning, and one.where the water was collected from the premises, of the adjacent owner and similarly discharged upon the sidewalk. The place where the water originally fell, and-from which it was collected, did not affect' or change the liability for discharging the water upon the sidewalk. Nor did the ordinance of the city, directing that the water he discharged under the sidewalk, make the defendant’s method of discharge unlawful per se, but it was only evidence authorizing the jury, to find the method- improper. (Knupfle v. Knickerbocker Ice Co., 84 N. Y. 488.)

We think, therefore, that the case falls within the rule laid down, by Judge Danforth in Wenzlick v. McCotter (supra), that it should have been submitted to the jury, if as an action for negligence, to determine whether the mode of discharging water adopted by the defendant was improper or negligent, and the defendant held liable only in case the jury answered that question affirmatively; or, if submitted as an action for nuisance, the question of the existence of .the nuisance should have been left to the jury to determine as. a question of fact, the jury ‘ being instructed that if the defendant maintained the leader in such a position as to render the highway unsafe and dangerous to travelers, that constituted a nuisance. But the learned trial judge substantially held that, if the plaintiff slipped on ice formed by water flowing through the leader, the defendant was liable, because the leader was unlawful, apart from any question of whether the act of the defendant in discharging the water was. either negligent or created a nuisance.

The judgment and order appealed from should' be reversed and a new trial granted, costs to abide the event.

All concurred.

Judgment and order reversed and new trial granted, costs to abide the event.  