
    William C. Goff, Resp’t, v. The Village of Little Falls, App’lt.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed September 30, 1892.)
    
    1. Municipal corporations—Negligence—Icy sidewalks.
    Plaintiff was injured by falling upon a declivity in a sidewalk caused by the clearing of the snow from it "In front of one lot while snow and ice had been allowed to accumulate to the depth of three inches in front of the adjoining one. It also appeared that on the day of the accident there had been storm and sleet covering the sidewalks with a coating of ice. Held, that the proofs justified the submission of the question of defendant’s negligence to the jury.
    
      3. Same—Contributory negligence.
    Plaintiff was accustomed to carry a cane and to wear creepers to prevent slipping, but on this occasion did not. Held, that this did not warrant a holding as matter oí law that he was negligent, but that it was a question for the jury.
    Appeal from a judgment in favor of the plaintiff, entered in the office of the clerk of Herkimer county December 16, 1891, on the verdict of a jury, and from an order denying the defendant’s motion for a new trial on the' minutes of the trial judge.
    
      J. D. Beckwith, for app’lt; C. J. Palmer, for' resp’t.
   Martin, J.

—The defendant seeks by this appeal to reversé the order and judgment herein upon the grounds, that the evidence lailed to show negligence upon the part of the defendant which caused or contributed to the plaintiff’s injury or that the plaintiff was free from contributory negligence, and that the court erred in the admission and rejection of evidence and in its instructions to the jury.

The plaintiff was a resident of the village of Little Falls, a municipal corporation. While passing along the westerly side of 'Second street, one of the public streets of that village, the plaintiff fell and broke his leg. The evidence tended to show that at the place where the accident occurred there was a slope or declivity in the sidewalk, occasioned by snow having been cleared off the walk opposite what was known as the livery stable and snow and ice having been allowed to accumulate in front of the adjoining lot. The proof was that the ice and snow had accumulated on the sidewalk opposite the Haley property to a depth of from three to six inches, and that at the point where the accident occurred there was a descent or- declivity at an angle of forty-five degrees of the length of about ten or twelve inches which extended the entire width of the sidewalk.

The proof also tended to show that the plaintiff usually carried a cane and that he had had creepers placed upon his boots prior to the accident to prevent slipping, when it was icy, but that be did not carry a cane or have creepers upon his boots at the time of the accident. The accident occurred about eleven o’clock in the forenoon. There had been more or less storm or sleet during the day, which had partly frozen as it fell, covering the streets and sidewalks of the village with a coating of ice and making all of them slippery.

The rule as -established by th.e recent decisions in this state seems to be that the duty resting upon a municipal corporation to remove accumulations of ice and snow from its streets and sidewalks becomes imperative only when dangerous formations or obstacles have been created and notice of their existence has been received by the corporation, or sufficient time has elapsed to afford a presumption of knowledge of their existence and an op.portunitv to effect their removal. Harrington v. City of Buffalo, 121 N. Y., 147; 30 St. Rep., 719.

A careful examination of the appeal book leads us to the conclusion that the evidence in this case was sufficient, under the rule stated, to justify the court in submitting the question of the defendant’s negligence to the jury, and to justify .the jury in finding that the defendant was negligent in not removing .the accu- . mulotions of snow and ice from the sidewalk at the place where the accident occurred, and that such negligence was a proximate cause of the plaintiff’s injury, without which it would not have occurred. Masters v. City of Troy, 50 Hun, 485; 20 St. Rep., 273; affirmed 123 N. Y., 628; 33 St. Rep., 1027; Bishop v. Village of Goshen, 120 N. Y., 337; 31 St. Rep., 490; Keane v. Village of Waterford, 130 N. Y., 188; 41 St. Rep., 291.

- 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. Thurber v. H. B., M & F. R. R. Co., 60 N. Y., 326; Todd v. City of Troy, 61 id., 506; Massoth v. D. & H. C. Co., 64 id., 529; Bullock v. Mayor, etc., 99 id., 654; Twogood v. Mayor, etc., of N. Y., 102 id., 216, 217; 1 St. Rep., 353; Peil v. Reinhart, 127 N. Y. 381; 38 St. Rep., 913; Morrison v. B. & S. A. R. R. Co., 130 N. Y., 166; 41 St. Rep., 248.

■ We have studied the numerous exceptions taken by the appellant to the charge of the court and to its refusal to charge as requested, but have found none that would seem to justify a reversal. When the whole charge is considered together, it becomes quite manifest that the case was presented to the jury upon a correct theory, and that all the questions involved were fairly and carefully submitted, with instructions that were as favorable to the defendant as it was entitled.

We have also carefully scrutinized the various rulings of the court as to the admission and rejection of evidence, but have found no reversible error. We think the judgment and order should be affirmed.

Judgment and order affirmed, with costs.

Hardin, P. J., and Merwin, J., concur.  