
    Mary Weston, Resp’t, v. The City of Troy, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed Oct. 3, 1893.)
    
    ÜEGLIGENCE—CONTRIBUTORY.
    The mere happening of an accident to a pedestrian through stepping on a ridge of ice upon the sidewalk, when it was covered with a light snow, does not make the question of contributory negligence one for the jury; the absence of negligence on the part of the plaintiff must be affirmatively shown either by direct proof or by circumstances.
    (Peckham and O’Brien, JJ., dissent.)
    Appeal from judgment of the supreme court, general term, third department, affirming judgment for plaintiff.
    
      William J. Roche, for app’lt; Charles E. Patterson and Frank J. Parmenter, for resp’t.
    
      
       Reversing 46 St. Rep., 963.
    
   Andrews, Ch. J.

It is a fundamental principle in the law of this state that, in an action for a personal injury based on negligence of the defendant, the absence of negligence on the part of the plaintiff, contributing to the injury, must be affirmatively shown by the plaintiff either by direct proof or by circumstances, and that no presumption arises from the happening of an injury and proof of negligence on the part of the defendant that the plaintiff was free from blame. Reynolds v. N. Y. C., etc., R. R. Co., 58 N. Y., 248.

The plaintiff was injured by falling on a sidewalk in Troy in March, 1885. Her leg was broken, and she recovered a moderate verdict. We think a case of neglect by the city was made out, and we should affirm the judgment of the general term which sustained the recovery, but for the reason that it would make a precedent for overturning the rule to which we have adverted. The proof shows that the plaintiff was passing over a sidewalk on Madison street, in the forenoon of a clear, cold day in March, adjacent to the saloon of one Foley, and stepped upon a ridge of ice formed by the discharge of water from a conductor on the outside of Foley’s building, and that she fell, sustaining the injury complained of. There is no shred of evidence as to the exercise by the plaintiff of any care on the occasion. An inch or two of light snow, which had fallen the night before, covered the ice, thereby rendering it more dangerous. The ridge, according to the plaintiff’s witnesses, was formed by the water overflowing from a gutter leading from the house where the water was discharged across the sidewalk to the roadway, and then congealing, the ridge being several inches high and two or three feet wide.

The evidence on the part of the plaintiff tends to show that the ridge of ice was plainly visible, and that it formed a dangerous obstruction to the use of the sidewalk was shown by the fact that two other persons had fallen there on the same day the plaintiff fell, and another person two or three weeks before.

Whether the plaintiff saw the ridge before stepping upon it does not appear, nor was it shown whether she was walking fast or slow, or what attention she was paying, if any, to the condition of the sidewalk. If she discovered the ridge, she was not required to leave the sidewalk, but she might, without being subjected to the charge of negligence, using due care, have kept on her way. But she could not heedlessly disregard the precautions which the obvious situation suggested, and proceed as though the sidewalk was free and unobstructed. The presumption which a wayfarer may indulge, that the streets of a city are safe, and which excuses him from maintaining a vigilant outlook for dangers and defects, has no application where the danger is known and obvious, if the plaintiff did not discover the ridge and passed along relying upon the walk being safe, or supposing, if she saw the ridge, that it was made by compacted snow, and not by ice, these and other circumstances might have been shown to meet the burden the law places upon a plaintiff suing for negligence of being himself free from fault But no evidence whatever was given by the plaintiff to meet this condition.

It is said by counsel that this was a mere inadvertence, and he asks us in substance to hold that the mere happening of the accident, by stepping upon the ridge, when it was covered with a light snow, made the question of contributory negligence one for the jury. We cannot assent to this view.

The judgment should, therefore, be reversed and a new trial granted.

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

All concur, except Beckham and O’Brien, JJ., dissenting.  