
    Adolph Berger, Respondent, v. The Mayor, Aldermen and Commonalty of the City of New York, Appellant.
    
      Municipality — what failure of the city of Mew Toi'k to remove ice from its sidewalks does not constitute negligence.
    
    A city which delegates the duty of removing ice and snow from its sidewalks, in the first instance, to the abutting property owners is only called upon to act when it has actual or constructive notice -that dangerous accumulations of ice and snow exist and a reasonable time has elapsed after such notice to enable it, in the exercise of ordinary care, to remove the obstruction.
    In an action brought against the city of New York to recover damages for personal injuries, sustained by the plaintiff in consequence of falling upon an accumulation of ice and snow upon a sidewalk on one of the public streets of that city, it appeared that the accident occurred between eleven and twelve o’clock in the forenoon on the 30th day of December, 1896.
    It also appeared, from the records of the United States weather bureau, that the first snowfall of the season occurred on the fifteenth of December and lasted for four minutes; that at nine-thirty-two p. m. on that day sleet commenced to fall, which turned into snow at eleven-eighteen p. m. ; that the snow continued to fall until three-fifteen p. m. on the sixteenth, during which time seven and eight-tenths inches fell; that the temperature was below freezing all day on the sixteenth, and that on the seventeenth the highest temperature recorded was thirty-six degrees and the lowest twenty-two degrees; that on the eighteenth the highest temperature recorded was forty-four degrees and the lowest twenty-eight degrees; on the nineteenth the highest temperature recorded was thirty-four degrees and the lowest twenty-three degrees, and on the twentieth that the highest temperature recorded was thirty-two degrees and the lowest twenty-four degrees; that the records did not show at which hours the temperature reached the maximum or minimum. These conditions were confirmed by the probábilities of the case and by the preponderance of the oral testimony. The duty of removing snow and ice from the sidewalk rested, in the first instance, upon the owners of the abutting property.
    
      Held, that if the ice upon which the plaintiff fell was formed as a result of the storm or of the melting of the snow, the city could not, under the conditions disclosed, be charged with negligence in not causing its removal before eleven o’clock on the morning of the twentieth of December.
    Patterson, J., dissented.
    Appeal by the defendant, The Mayor, Aldermen and Commonalty of the City of Hew York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 9th day of March, 1901, upon the verdict of a jury for $2,083, and also from an order entered in said clerk’s office on the 2lst day of March, 1901, denying the defendant’s motion for a new trial made upon the minutes.
    
      Chase Mellen, for the appellant.
    
      Roger Foster, for the respondent.
   Laughlin, J.:

This is an action for personal injuries sustained by plaintiff in • falling upon a sidewalk on one of the public streets of the city of Hew York, which, it is alleged, was in a dangerous and unsafe condition owing to ice and snow negligently allowed to accumulate and remain thereon by defendant. The accident occurred between the hours of eleven and twelve o’clock in the forenoon on the 20th day of December, 1896. The day was cold, but the sun was shining. The accident occurred in the vicinity of the southeast corner of Stanton and Pitt streets, but there is a sharp conflict in the evidence as to whether it occurred on the southerly walk of Stanton street or on the easterly walk of Pitt street. The lot at this corner is occupied by a building referred to in the testimony as a grocery store, which extends out to the lines of the street, but at the time in question the store part of the building was unoccupied. The walks were level, constructed of stone, and no defect therein was charged or shown. On the day in question plaintiff, who resided at No. 84 Sheriff street, which is about a block and a half easterly and southerly of this corner, had been to the synagogue on Norfolk street, westerly of this corner and north of Stanton street. He was fifty-nine years of age, in good health, and apparently his eyesight ivas in normal condition for a man of that age. The route traveled by him in going to the synagogue is not shown.

The grounds upon which we are asked to grant a new trial are (1) that plaintiff was guilty of contributory negligence and the complaint should have been dismissed, and (2) that the verdict is against the weight of evidence.

The material evidence relating to the point of the accident, the con. dition of the walk, the care exercised by plaintiff, and the weather, is in substance as follows : The plaintiff testified that the weather had been cold for two weeks, and that there had been rain, and that he fell at the corner; that he had in his hands a prayer book and a “ talith,” and was walking right in the middle of the walk and did not see any ice until after he slipped and fell; that he then saw ice under the snow; that the whole corner was full of ice and snow about three or four inches thick, but he could not say exactly whether it was smooth or rough or lumpy; that if he had seen the ice he would have gone around it; that he fell about the second step he took on the ice and snow, and sustained a fracture of the thigh bone near the hip joint; that it last snowed the day before and the walk was clear everywhere except at that place; that there was only new snow on the walk and ice, but that in the street there was both old and new snow. An observer from the United States Weather Bureau, called by plaintiff, testifies that the records show that there was no snow until Monday, the fifteenth of December, when there was only a trace which fell for four minutes, but that at nine-thirty-two p. m. sleet commenced falling, which turned into snow at eleven-eighteen p. m., and snow continued to fall until three-fifteen p. m. on Tuesday, the sixteenth, during which time seven and eight-tenths inches of snow fell; that there was no further snow until after the twentieth; that the temperature was below freezing all day the sixteenth, and on the seventeenth the highest temperature was thirty-six degrees and the lowest twenty-two, on the eighteenth the highest forty-four and the lowest twenty-eight, on the nineteenth the highest thirty-four and the lowest twenty-three, and the twentieth the highest thirty-two and the lowest twenty-four; that the records did not show at what times the temperature reached the maximum or minimum. He also testified that there could not be any ice before the fifteenth, because there was not any snow. A witness named Connor, whose business was peddling with a push cart on Stanton street, called by plaintiff, testified that he did not see the accident; that he was over these walks daily ; that there were pieces of ice frozen on the walk at the corner in question, and in answer to an inquiry as to how the ice came there he said it was raining and the frost came and a street cleaner on the Monday morning before the accident upset a barrel of German pickles, which he said were usually put up in brine or vinegar, on the sidewalk on Pitt street opposite a door into the store; that the pickles were picked up but that the water froze and that thereafter and on that and the following day he saw three or four people fall there and that he saw a policeman who was standing on the corner pick up a man who fell there on Tuesday; that he saw no one fall there on "Wednesday, Thursday or Friday; that the ice remained there two weeks (but it is evident that he did not mean that the ice had been there two weeks at the time of the accident), and that it snowed five or six days before the people fell. The plaintiff’s son testified that he arrived on the scene just as they were removing his father to the ambulance, and that this was in front of Ho. 108 Pitt street, opposite the door of a brick tenement house, but it may be that he has reference to the Pitt street door of the grocery building which, however, is given by another witness as Ho. 106; that his father was there in a chair in the middle of the walk near the corner; that there was smooth ice at that place covered by snow; that “ the ice was about two square yards, but it was not all over; it was about a foot high, the ice, but not all over it, just only from the corner, and the center was about a foot high, the ice on the sidewalk * * * it was slanting * * * it slanted toward the house,” and that from the highest point it slanted towards the curb. This witness, after testifying that the ice was on Pitt street a few steps from the corner of Stanton street, “ about two feet — might be three ” from the corner, said that the ice was on Stanton street and further added, “I. am positive I had seen it there for a week and a half before — it might have been a week.” Mr. Greenburg, a corn merchant called as a witness for plaintiff, testified : “ It was in Stanton street; a piece of ice was on the sidewalk; it only covered where he fell; on the rest of the sidewalk was snow; that ice was, perhaps, one foot thick. ,Q. Was the ice level there, or was there a slant ? A. A slant—pieces. * * * I had seen the ice and snow there in the same condition it was in when the plaintiff fell; about two weeks it was there; I remember it had snowed from the heavens, perhaps four days before.” He further testified that there was snow and ice all over this sidewalk in front of this place ” and that plaintiff fell on the sidewalk on Stanton street. Another witness, a paperhanger named Mnfson, called by plaintiff, testified that prior to the eighteenth of December, and about the fifteenth or sixteenth, he saw a girl who was walking on the sidewalk at the corner of Stanton and Pitt streets with a pitcher in her hand fall down and break the pitcher and that a policeman helped her up; that there was ice on the walk and it had been there for two weeks, and in answer to a question calling for a description of the walk on December nineteenth and twentieth he said, “ Well, the sidewalk, was ice on the sidewalk; it was in chunks — pieces of ice there; on the sidewalk was snow.” He further testified that at the point where he saw the girl fall the ice was in the middle of the walk and about a foot thick; that the snow had been there for a few days and the ice about two weeks. He was then asked, Was. the ice and snow all the same thickness the whole width of the sidewalk, or was it higher at one point than another; if so, where ? ” to which he answered, “ All over there was only snow on the sidewalk, and that place there was ice; I could not say that place was higher or lower than the rest of the sidewalk, but there was snow on the. sidewalk all over, and so long as there is snow all over the sidewalk you can’t tell.” The record also shows further testimony of this witness, after which there was no cross-examination, as follows: By the Court: I say this ice was about a foot thick; I do not say the surface of the sidewalk was level; it was not .all even. Q. You have just told us the sidewalk was the same all over — you couldn’t see any difference in the height of the ice in any other part of the sidewalk; didn’t you say that ? A. There was snow on the sidewalk, but in that place there was ice; this ice, I say, was about a foot thick, and the sidewalk was level all over. Q. Then the snow was a foot thick which lay in the other part of the sidewalk to make it level % A. I don’t know; I didn’t measure that. Q. You say it was all the same thickness all the way over; is that right ? A. I can’t tell if it is right or not.”

The defendant called as witnesses four police officers, two of whom had the beat embracing this sidewalk at the time in question, and all of whom gave evidence tending to show that there was no snow or ice upon the walk; that it was merely damp or wet from people walking on it after passing through the slush at the crossing, but that it was not frozen and that no snow or ice had been permitted to accumulate there, and the evidence of some of them tended to show that the accident occurred on Stanton street about fifteen feet from the crosswalk and that there was considerable snow in the street at the time. The janitor of the grocery building testified that he promptly cleaned the walk when the snow storm ceased and that there was no ice on the walk and only a little snow carried there by pedestrians. The gentleman in charge of the meteorological observatory at Central Park was called as a witness for the city and supplied some evidence relating to the matter concerning which the government observer was not interrogated. This witness said that the only rain in the month of December prior to the accident was on December ninth, when twenty-six one-liundredths of an inch of rain fell, and on December eleventh, when only three one-hundredths of an inch fell.

At the close of the plaintiff’s case and at the close of all the evidence, defendant’s counsel moved for a dismissal of the complaint upon the ground that plaintiff had not proved freedom from contributory negligence and that he had not established a cause of action, and to the ruling of the court in denying these motions an exception was taken.

The learned trial judge submitted the case to the jury in a clear and fair charge to which no exception was taken. A careful consideration of all the evidence which we briefly summarize leads to the conclusion that the verdict was clearly against the weight of evidence. The records of the weather bureau, supported and sustained by the probabilities of the case and the preponderance of the evidence, indicate that the walk had not been left in a dangerous or unsafe condition for public travel. The preponderance of the evidence impeaches the testimony of some of the plaintifE’s witnesses who, after this long lapse of time, undertook to state that there had been ice upon the walk for upwards of a week prior to the accident. Ho explanation is found in the evidence as to how ice could have formed on the walk for such a length of time prior to the 20th day of .December, 1896, and the verdict cannot,. therefore, be permitted to stand.

But beyond this we are also of the opinion that the exceptions to the refusal of the court to nonsuit and to direct a verdict for the defendant which appellant’s counsel states in his points that he relies upon but does not argue, were well taken. If there was ice upon the walk as the result of the sleet which immediately preceded the snow storm of Monday and Tuesday, there was no evidence that the same had been softened by a thaw for a sufficient length of time prior to the accident to charge the city with negligence in not causing its removal. Since the thermometer did not go above the freezing point on Tuesday it is manifest that no ice could have formed from the melting of snow on that day. At some time on Wednesday the thermometer went two degrees above the freezing point but how long it remained there and whether a sufficient length of time to cause a thaw does not appear nor is there any evidence of a thaw on that day. On the eighteenth the thermometer went twelve degrees above the freezing point at some time, but there is no evidence as to whether it was in the morning, or afternoon or evening, nor is there any other evidence of a thaw on that day. The thermometer went only two degrees above the freezing point on the nineteenth, and there is no other evidence of a thaw on that day. It is manifest, therefore, that if any ice was formed as the result of this storm or tire melting of the snow, the city could not reasonably be charged with negligence in not causing its removal before eleven o’clock on the morning of the twentieth. The duty of a municipal corporation to remove accumulations of snow and ice from its walks is not absolute. It is a qualified duty, and becomes imperative only when the accumulations of ice or snow render the walk dangerous to pedestrians. This city, like most of our municipalities, has delegated that duty in the first instance to the adjacent property owners, and it is only called upon to act when it has actual or constructive notice that dangerous' accumulations of snow or ice exist, and a reasonable time lias elapsed after such notice to enable it, in the exercise of ordinary care, to remove the obstruction.

(Taylor v. City of Yonkers, 105 N. Y. 202; Harrington v. City of Buffalo, 121 id. 147.) If this was a patch of ice caused by the upsetting of the barrel of pickles as indicated by some of the evidence, it was not so manifestly dangerous to public travel as to give the city constructive notice and impose upon it the duty of causing its removal prior to the accident. It is claimed that the city had actual notice through its police officers, but if so the evidence does not show that the condition of the weather was such that the ice could and should have been removed by the exercise of reasonable care. An attempt was made without success to show that there were footprints in the ice, which would indicate a thaw. It is claimed that the city is liable for the negligence of the street cleaner in upsetting the barrel of pickles, but the evidence is altogether too meagre as to the facts and circumstances under which it was upset to warrant a finding of negligence in that regard, and it may well be doubted as to whether the formation of ice a foot or many inches in thickness and dangerous to public travel would be the natural or necessary consequence of the tipping over of a barrel of brine or vinegar, or other water upon a sidewalk so as to render the city liable, even if it were conceded that it would be otherwise liable for such act of the street cleaner.

If there had been a small patch of ice upon the walk for two weeks, as testified to by some of the witnesses, there being nothing in the evidence to explain what caused its formation, and with only this slight evidence as to the nature or extent thereof, we think the city would not be liable for the same reasons upon which we deem the city not liable for the ice if formed from the water in the pickle barrel.

It follows that the judgment and order should be reversed and a new trial granted, with costs to appellant to abide the event.

Van Brunt, P. J., Ingraham and McLaughlin, JJ., concurred; Patterson, J., dissented.

Ingraham, J. (concurring):

I concur in the reversal of this judgment, upon the ground that the evidence does not justify a finding that the defendant was negligent. The obligation of a municipal corporation to remove gnow and ice from' the sidewalks is one that has been much discussed, but I think it is now settled that the existence of ice or snow upon the sidewalks in cities in this locality is not of itself evidence of negligence. It is only necessary to call attention to two or three late cases in the Court of Appeals. Thus, Judge Finch, in Taylor v. City of Yonkers (105 N. Y. 206), says: “ When the streets have been wholly or partially cleaned it often happens that a fall of rain or the melting of adjoining snow is suddenly followed by severe cold, which covers everything with a film or layer of ice and makes the walks slippery and dangerous. This frozen surface it is practi eally impossible to remove until a thaw comes which remedies the evil. The municipality is not negligent for awaiting that result. It may and should require householders, when the danger is great, to sprinkle upon the surface ashes, or sand or the like, as a measure of prudence and precaution, but it is not responsible for their omission. It is no more bound to put upon the ice, which it cannot reasonably remove, such foreign material than to cover it with boards. The emergency is one which is common to every street in the village or city, and which the corporation is powerless to combat. Usually it lasts but a few days, and the corporate authorities may await without negligence a change of temperature which will remove the danger.” In Kaveny v. City of Troy (108 N. Y. 571, 575), Judge Finch says: 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 Kinney v. City of Troy (108 N. Y. 570) Judge Danforth says: “ A city is not bound to keep its sidewalks absolutely free from ice, * * *. The situation was one common to all cities in a northern climate and to all sidewalks in such cities. A sidewalk, difficult it may be of passage, but if so, from the ordinary action of the elements only, and from a formation of ice which no body of men are competent to prevent, nor under any ordinary circumstances to remove. Something more than a slippery sidewalk must be shown to enable one suffering from it to cast the burden of compensation upon the city.” These cases are quoted with approval in Harrington v. City of Buffalo (121 N. Y. 147) where it is said : “ The duty resting upon municipal corporations to remove accumulations of ice and snow as it falls from time to time upon their streets is a qualified one, and becomes imperative only when dangerous formations or obstacles have been created and notice of their existence has been received by the corporation.” And in Lichtenstein v. Mayor (159 N. Y. 500) the same principle was discussed and applied.

The situation shown to have existed in this case brings it, I think, within the principles here stated. It was the middle of a severe winter. Several days prior to the accident there had been alternate freezing and thawing, and ice had been formed upon this sidewalk. The accident happened on the twentieth of December. The first snow that fell that season, as appeared by the official of the United States Weather Bureau, was on Monday, December fifteenth, and upon that day and the following about seven and three-tenths inches of snow fell. On the seventeenth the thermometer was between thirty-six and twenty-two degrees. On the eighteenth it was between forty-four and twenty-eight degrees; on the nineteenth between thirty-four and twenty-three degrees ; and on the twentieth, the day of the accident, between thirty-two and twenty-four degrees. The sidewalk was level and properly constructed, but was rendered slippery by this ice or snow. It seems to me quite evident that this condition was one that it was impossible for the city to remedy. All the ice and snow from all the sidewalks in RTew York could not be removed, and to require the city to perform such a duty would be to require it to perform an impossibility. The city was not negligent in waiting for a thaw to come which would render the removal of this ice upon the sidewalk practicable. This was not a case Where snow had been allowed to accumulate upon the sidewalk for a long period and where no effort had been made by the abutting owner or the city to clean the sidewalk. The sidewalk appears to have been properly cleaned, and the condition existing seems to have been caused, in some way, by the melting of the snow or ice audits subsequent freezing. Nothing here shown would justify a finding that the city was negligent in not removing every particle of ice from, the many miles of sidewalk in the city, and there was, therefore, nothing to show negligence on the part of the defendant.

Judgment and order reversed, new trial ordered, costs to appellant to abide event.-  