
    Mame J. Cupp, Respondent, v. The City of Elmira, Appellant.
    Third Department,
    May 6, 1908.
    Municipal corporation—negligence — injury on icy sidewalk—charge.
    A municipality is- not negligent in failing to proceed at once to clear its sidewalks of snow and ice, hut may rely for a reasonable time on the assumption that abutting owners will perform that duty.
    Where in an action to recover against a municipality for injuries received by a fall on an icy sidewalk it appears that for some time prior to the accident there had been a generally freezing condition so that the sidewalks throughout the city were covered with ice and many pedestrians were compelled to walk in the middle of the streets, and it is not shown that there was any peculiar formation at the particular locality distinguishable from the general condition throughout the city, and it was not practical for the city to remove the ice from all its sidewalks, the city is not negligent in failing at once to remove the ice from that particular point.
    Where a sidewalk for a width of five feet has been kept reasonably free from snow, the municipality is not liable solely by reason of the fact that water dripped on the sidewalk from an adjoining platform during a general thaw and subsequently froze.
    
      When in an action to recover for personal injuries there is no positive proof that the plaintiff fell on ice which formed from the drippings from an adjoining platform, it is error to refuse to charge that if the jury are unable to find whether the plaintiff fell on the ice formed from the drippings from the platform, or on ice which formed from snow left on the walk, they must find for the defendant.
    Appeal by the defendant, The City of Elmira, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Chemung on the 8'th day of May, 1907, upon the verdict of a jury for $2,500, and also from an order entered in said clerk’s office on the 4th day of June, 1907, denying the defendant’s motion for a new trial made upon the minutes.
    
      John F. Murtaugh, Corporation Counsel, for the appellant.
    
      H. H. Rockwell, for the respondent.
   Cochrane, J.:

Liability of the defendant is asserted herein because of an icy sidewalk on which the plaintiff fell and was injured. The accident occurred on the afternoon of February 15, 1905,' on a sidewalk in front of a vacant building on one of defendant’s streets. Between the building and the sidewalk was a platform about eight inches high on the property of the owner of the building and used in connection therewith. The walk in front of the building was about twelve feet wide. The snow was shoveled toward the outer side of the walk, leaving a space of four or five feet for passage between the platform and the shoveled snow. This intervening space seems to have been kept reasonably free from snow.

At the trial defendant offered to show that the obligation did not rest upon it to shovel more than five feet of this walk. An objection to this offer was sustained on the statement of plaintiff’s counsel that he did not raise any point in reference thereto. We must assume, therefore, that there was no negligence on the part of the city because the walk was not kept free of snow for a greater width than four or five feet from the platform.

The evidence is conflicting as to the nature and condition of the ice in front of this building, but the inference is permissible that the intervening space of four or five feet for the entire width of the building was covered with, ice at the • time of the accident. There had been snow and ice on this particular sidewalk for two weeks.

From official records made at an observation station for the governmental weather bureau and offered in evidence by the plaintiff it appeared that for the entire month of February prior to the accident the temperature was uniformly below the freezing point except for portions of February sixth, February ninth and February twelfth; that it snowed on the former of said days, and that on the latter day there was a slight snow, changing to rain at nine o’clock in the evening, and that at seven o’clock of the following morning the temperature was twenty-two degrees and remained below the freezing point continuously until after the accident. It also appeared that during all of the month there had been icy places on the sidewalks of-tlie city.

The condition disclosed from th,e first to the fifteenth of the month, when the accident happened, seems to have been general throughout the city and does not differ in any respect from that which frequently exists in cities and villages in this climate. It is undisputed that during all this time the sidewalks were partly covered with ice. In fact, plaintiff herself testified that it was icy in a great many places and that on some of the walks she could pick out places where she did not have to walk on ice. It also appears that for several days prior to the accident pedestrians because of the slippery sidewalks were walking in the middle of the streets. It does not appear what the weather conditions were prior to February first, and hence' in determining the question of defendant’s negligence we are limited to the facts as they existed between that date and the time of the accident.

Cases like this have frequently been before the courts. It has often been held that a municipality is not negligent because it does not proceed at once to clear its sidewalks of snow and ice, .but it may rely for a reasonable time on the assumption that the abutting property owners will perform that duty, and it has also been held that it may wait for the temperature to moderate. (Foley v. City of New York, 95 App. Div. 374; Taylor v. City of Yonkers, 105 N. Y. 202; Staley v. Mayor, 37 App. Div. 598; Moran v. City of New York, 98 id. 301; O'Keeffe v. Mayor, 29 id. 524; Gramm v. Village of Greenbush, 20 N. Y. St. Repr. 370; Buck v. Village of Glens Falls, 4 App. Div. 323.)

In Kaveny v. City of Troy (108 N. Y. 571) it appeared that the sidewalks generally throughout the city had been for a month prior to the accident slippery and dangerous from snow and ice. The' court said : “ The walk had been regularly cleaned of snow, which was removed or swept off within a reasonable period after it had fallen; but the successive thawing and freezing, varied occasionally by rain, had kept the surface of the sidewalk very generally coated with ice from the action of natural causes and the rigor of the climate. Upon this sidewalk the plaintiff slipped and fell and was seriously injured. These facts, however, do not establish a liability on the part of "the city. They disclose no violation of the rule that the duty of the corporation is to keep the sidewalks reasonably clear of ice and snow. Something more than the presence of ice due to the results of a low winter temperature must be shown to make the city chargeable with negligence. The fact that for more than ten days preceding the accident to plaintiff the mercury had been below the freezing point was established without contradiction, and that the city did not accomplish impossibilities or display unreasonable and extraordinary diligence furnishes no ground of liability.”

In Staley v. Mayor (supra) it was said : It often happens that a fall of rain is suddenly followed by severe cold, by reason of which the snow or ice is frozen to the sidewalk so that it is practically impossible to remove it until a thaw has come. In such case the rule is that the municipality is not negligent in awaiting the thaw. The emergency is one which is common to every street in the city, and which the corporation is powerless to remove; and the municipality may await, without negligence, a change of temperature which will remove the danger.”

In Anthony v. Village of Glens Falls (4 App. Div. 218) plaintiff fell on ice which had remained for several weeks on a sidewalk. The court said: We think the principle maybe deemed established by the authorities that a municipal corporation is not liable for an injury resulting from a smooth coating of ice on its sidewalks during the winter season where there is no ridge, unevenness or unusual condition, of the walk, and where, as in this case, no fact is shown indicating negligence upon the part of the municipal authorities, except a mere slippery walk caused by a low temperature, in consequence of which all the streets within the municipality have become coated with ice. In this climate it is not within the power of a municipal corporation to prevent such a condition of its streets.”

The danger presented in this case is one which is familiar to all residing in this climate. The case presents no unusual features. The evidence is insufficient to satisfactorily establish that there was any ridge, unusual unevenness or peculiar formation not due to the action of the elements or which distinguished the condition of this particular sidewalk from the general condition of the sidewalks throughout the city. The case in that respect differs materially from Kopper v. City of Yonkers (110 App. Div. 747) and Powers v. Village of Moravia (123 id. 191). ISTo duty existed on the part of the city in reference to this sidewalk where plaintiff fell which did not exist in reference to all the sidewalks of the city, and we are of the opinion that the weather conditions were such as not to impose on the city the duty of removing the snow and ice from all its sidewalks. On two of the three days for the two weeks preceding the accident during portions of which days the temperature was above the freezing point it was storming, and the circumstances were not such as to render it practicable for the city to remove the snow and ice which had accumulated on its various sidewalks.

It further appears that snow had melted on the said platform, and that the water thus formed had dripped onto the sidewalk and frozen. It does not appear, however, how long the ice thus formed had existed, and the evidence is conflicting as to whether the water from the platform flowed across the shoveled part of the sidewalk and encoimtered the snow piled on the outer side thereof, or whether it congealed adjoining the platform. In Kaveny v. City of Troy (108 N. Y. 571) it was held that the city was not liable for water dripping from the eaves of a piazza overhanging the sidewalk and congealing thereon. If a municipality is not liable in such a case we cannot see why the same principle should not apply here and relieve the municipality from responsibility for the ice formed from the water dripping from the platform. Furthermore, there is no positive proof that plaintiff fell on the ice thus formed and in view of this uncertainty it was error for the court to decline to charge as requested that if the jury were unable to find whether the plaintiff fell on the ice formed from the drippings from the platform or on ice which formed from snow left on the walk, then it must find a verdict in favor of the defendant.”

The judgment and order must be reversed and a new trial granted, with costs to the appellant to abide the event.

All concurred.

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