
    Charles Walsh Respondent, v. The City of New York, Appellant.
    First Department,
    December, 1905.
    negligence — when municipality liable for injury caused by frozen leakage from hydrant — when plaintiff not chargeable with contributory negligence — excessive recovery.
    When a municipality for a long time allows a hydrant to remain in a leaky condition, and there is no culvert to drain such leakage, but the same is allowed to freeze upon the crosswalks, it is liable for injuries received by a pedestrian who slips and falls on such ice at a period of the year when the streets are otherwise free from ice and snow.
    The municipality is chargeable with implied notice of such defect, when the condition has existed for a long time.
    Such pedestrian is not chargeable with contributory negligence as a matter pf law when the fall occurred at a time of year and under conditions which gave him no reason to expect to find ice upon a crosswalk, and when such ice is shown to have been covered with a layer of dust which- made it look like asphalt.
    
      A verdict of $12,500 for the breaking of-a patella; though a, serious and'permanent injury, is excessive and should be reduced to $7,702; including costs, etc. Houghton, J., dissented, .with opinion. ’
    Appeal by the" defendant, The City of New York, from a judgment of the-Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 21st day. Of March, 1905, upon the verdict of a jury for $12,500, and also from an "order entered in -said clerk’s office on the 24th day of March,. 1905, denying the defendant’s motion for a new trial made upon the minutes.
    
      Theodore Connoly, for the appellant.
    
      Archibald C. Shenstone, for the respondent.
   Clarke, J.:

On the afternoon of, November 28, 1901, the plaintiff, a practicing physician, forty years of age, was walking up Broadway in the city of New York on the easterly side. There had been no snow storms, the streets were not icy or slippery. Hq was not expecting ice, and he did hot see any ice. He was walking along as people ordinarily do upon the sidewalk. At the corner of Thirty-fifth street, as' he, stepped from the curb to the crosswalk, he slipped and fell heavily, breaking his right patella, causing serious and permanent injury. It was in evidence that there was a fire hydrant in front of No. 72 West Thirty-fifth street,” about 200 feet from the corner. For a long time during that summer and fall this hydrant had been continuously leaking. As there Was no culvert on that corner, the escaping water formed quite a pool, and in cold weather that water froze. ■ It'was established that on the day of the accident the icé extended from the hydrant to and across the crosswalk, in the gutter, to a width of three or four féet and about four inches thick. • Tt does . not appear that at the crosswalk the ice-exténded over the curb onto the sidewalk. There was testimony that this ice.was covered with dust, so that it- looked like the asphalt and was not distinguishable on casual examination.- ■ Undoubtedly, as' the plaintiff stepped down from the curb, he slipped and fell'on this ice caused by'the overflow of the'water from the lqaky hydrant maintained in such condition for a Jong time by the city- As to the conditions existing -at the-time of the accident, and as to the continued existence of the leaky hydrant, there is no room for doubt upon the evidence. And the evidence tends to establish that the icy condition of the gutter and the sidewalk had existed for some time before the accident.

Wackel testified: “ Previous to the accident * ' * '* I had often wondered where the ice came from; I saw a number of people there slipping and falling, and I slipped myself there a couple of times, so naturally would wonder where all the ice came from, because there was no other ice .anywhere around at the time in the street, so I looked up the street and saw there was ice all over this hydrant.” Studebaker said : I could not say *" * * how long that same body (of ice) had been there, but whenever it was cold enough there was always ice there, because the sun would never hit that spot; * * * the ice was between the crosswalk and the hydrant. * * * (There) was always a flow of watér there.” “'Previous to that I saw a lady slip there, ■ * * * I should judge a month—something like that.” Esty testified : “Just previous to that time I noticed ice oh the sidewalk on the corner of Sixth avenue and Thirty-fifth street; " * * * there was a hydrant in front of No. 72 West Thirty-fifth street; * * * that hydrant was pretty well broke and leaky, and the water leaked so much because every morning I had to get the ice pick and break the ice in front of my house so not to fall; I followed the ice up, it came from the hydrant.’? The case was fairly submitted to the jury by the court, and a verdict was returned for the plaintiff for $12,500. ■ '

The defendant urges upon this appeal as a reason for reversing the judgment that the plaintiff did not establish his freedom from contributory negligence, and cites as a controlling authority Weston v. City of Troy (139 N. Y. 281). In that case a ridge of ice several inches high and two or three feet broad was formed across the sidewalk by the discharge of water from a conductor on the outside of the building. An inch or two of snow had fallen the night before. The court, while holding that a case of neglect on the part of the city had been made out, said : “ There is no shred of evidence as to the exercise by the plaintiff of any care on the occasion. * * 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 ño application where the danger is. known and,obvious. If the plaintiff did not discover the ridgé 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 icé, these and other circumstances might have been shown to meet the burden the law places upoñ a plaintiff suing for negligence of being himself zfree from fault.” In the case at bar the plaintiff testified that he was not expecting any ice, that he did not see añy ice before he fell, that he wás walking along giving just ■ the same attention that one ordinarily pays in walking the streets,; and it was in evidence that-there had been.no snow .or ice storms and :that this particular localized bit of ice was covered with dust so that it looked like asphalt. Those facts being in evidence, it was for the jury to say whether, under the conditions of time and place and weather, the plaintiff was not warranted in indulging the presumption that the streets of the city were safe, was not excused from maintaining a. vigilant outlook for dangers and defects, and had not shown, himself free from contributory negligence. ■ '

There seems to be no defect in the case so, far as defendant’s liability is concerned. It had maintained, for so long a period .that notice will be implied, a leaking hydrant from Which water/flowed to such an extent that by reason of the non-existence of a culvert, a pool formed which Cold weather, to be reasonably anticipated at that season of the year,, converted into ice.. If authority is needed, it may be found in Woolsey v. Trustees of Ellenville (155 N. Y. 513) where a judgment for plaintiff was. affirmed upon facts stated as’follows: “ Along Gross street is a. ditch, which collects, .the water upon the surface, which flows through a culvert in the sidewalk into Canal street. The negligence charged against the defendant was that the trustees, had permitted the throat of the culvert to become clogged, and that in consequence, the water flowed over on to the sidewalk and froze, and that it was upon the ice so formed that the plaintiff fell.” If it be actionable negligence to permit the throat of a culvert to' be clogged so that water backs up, overflows and freezes on the walk, to permit a-hydrant to remain for a long period in such á condition that water flowing froftn it form's a pool and freezes upon a sidewalk or crosswalk must likewise create liability.' We, therefore, think that a verdict for the plaintiff was warranted by the evidence. But the amount thereof was excessive and out of all proportion to the'injuries sufficiently proven.

The judgment and order will, therefore, be reversed and a new trial ordered, with costs to appellant to abide the event, unless the plaintiff will stipulate to reduce the judgment as entered, including interest and costs, to the sum of $7,702.04; in which event the judgment as so modified and the order appealed from will be affirmed, without costs.

O’Brien, P. J., Patterson and Ingraham, JJ., concurred; Houghton, J., dissented.

Houghton, J. (dissenting):

notwithstanding the defective hydrant, I think it was incumbent upon the plaintiff to prove that the city in fact knew that ice had formed from the water running therefrom, or that ice had existed from that cause, for a sufficient length of time to give the city constructive notice. The water did not make the street defective." It was only after ice had formed that it became so. The fact that the water escaping from the hydrant would naturally freeze in cold weather, I do not think rendered the city liable to one slipping the moment it froze. The weight of testimony is that the ice formed during the night preceding the morning of the accident. Ho actual notice of its existence was proven, and sufficient time had not elapsed to constitute constructive notice. Hence, I vote 'to reverse the judgment, rather than to modify and affirm it.

Judgment and order reversed, new trial ordered, costs to appellant to abide event, unless plaintiff stipulates to reduce judgment as entered, including interest and costs, to $7,702.04; in which event judgment as so modified and order affirmed, without costs.  