
    Mary I. Gillrie, Resp’t, v. The City of Lockport, App’lt.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed October 28, 1890.)
    
    Negligence—Evidence—Ice on sidewalk.
    In an action, for injuries sustained through, slipping upon an icy sidewalk, a witness was permitted to testify that about two years prior to the happening of the accident in question, he fell upon the ice at the same place; that there was about the same amount of ice there when he fell as when plaintiff fell. Held, error; that the mere proof of a fall occasioned by the existence of ice two years before was not competent for any purpose.
    Appeal from a judgment of the general term of the supreme court, fifth department, entered on an order affirming a judgment of the circuit in favor of the respondent and against the ajipellant, in the sum of $1,351.72, damages and costs.
    
      John T. Murray, for app’lt; John K Pound, for resp’t.
    
      
       Reversing 12 N. Y. State Rep., 707.
    
   Parker, J.

The judgment under review is for personal injuries sustained by the .plaintiff in falling upon a sidewalk which it is alleged the defendant negligently suffered to be out of repair and in an improper condition.

Between five and six o’clock in the afternoon of February 27, 1883, the plaintiff passed out of Hascall Brothers’ store on Main street, in the city of Lockport, and turned towards home. While on the sidewalk, and when about opposite the division line between that store and a building occupied by Craine & Watters, she stepped upon a mound or hummock of ice, slipped and fell, breaking her arm.

The evidence tended to show that the sidewalk in that vicinity, except at the place of the accident, was free from ice. Its presence there was due to the fact that at this point water was conducted from the roof of an adjoining building by means of a conductor pipe into a gutter channeled into the surface stone of the sidewalk to the curb-stone, which, prior to the date in question, had become disjointed and broken so that instead of the water being led directly to the gutter, it, to some extent, poured out of the broken places and ran over onto the sidewalk. One of the gutter stones had also become broken, and the broken piece was elevated at one end and depressed at the other, so that it checked in some measure the flow of water towards the gutter, and contributed towards making the sidewalk at that point rough and uneven whenever a lowering temperature caused the water thus retained to congeal. Without further reciting the facts, it is sufficient to say that we agree with the learned judge at general term that this case does not come within the rule established in Muller v. City of Newburgh, 32 Hun, 24; 105 N. Y., 668; 8 N. Y. State Rep., 910, and Taylor v. City of Yonkers, 105 N. Y., 202 ; 7 N. Y. State Rep., 332, because the dangerous condition of the sidewalk was no.t due to natural causes, but rather to artificial ones, and thus the finding of the jury that the defendant was negligent comes within the protection of Todd v. City of Troy, 61 N. Y., 506.

The record presents but one exception requiring consideration, A witness sworn on behalf of the plaintiff was permitted to testify, against the objection of the defendant that the evidence was too remote, irrelevant and immaterial, that about two' years prior to the happening of the accident in question he fell upon the ice at the same place. That as he was coming out of Craine & Watters’ store he stepped down from the riser onto this place and fed.

He further said that there was about the same amount of ice there when he fell as when the plaintiff fell. It does not appear that the accumulation of ice at the time the witness fell was occasioned by the defects in the conductor pipe and gutter stone which are alleged by the plaintiff to have been the cause of the creation of the mound or hummock of ice upon which she fell. After the evidence had been admitted, the defendant also moved to strike out the evidence of the witness so far as it referred to his fall of two years before. The motion was denied, and the defendant excepted.' It is competent to show that the sidewalk had been in an unsafe condition by reason of the accumulation of ice for a period of time previous to the happening of the accident. Indeed, it was necessary to show, in the event of a failure to prove that the defendant had actual notice of the condition of the sidewalk in this place, that it had been in that condition for such a length of time that the defendant ought to have known it, and is therefore chargeable with constructive notice of its actual condition. In the attempt to make such proof, it has been held competent to permit one who is giving testimony as to the condition of the sidewalk to testify that he had fallen himself. It tends to show how he came to know the condition of the walk Pomfrey v. Village of Saratoga Springs, 104 N. Y., 459, 469 ; 5 N. Y. State Rep., 802. Proof of the happening of a prior accident in the same place has also been held to be competent, upon the ground that it tended to show that the walk, tested by actual use, had been demonstrated to be in an unsafe and improper condition, and that such was its condition at the time of the happening of the accident. Quinlan v. The City of Utica, 11 Hun, 217 ; ,74 N. Y., 603; District of Columbia v. Armes, 107 U. S., 519.

Had the plaintiff confined her proof so far as it related to the falling of others during the c< ntinuance of this mound or hummock of ice, it would have come within the protection of the rule established by the decisions of which the cases cited ore a t}-pe. But mere proof of a fall occasioned by the existence of ice two years before was not competent for any purpose. It was not pertinent upon the question of notice to the defendant because that ice was not the occasion of this injury. It did not tend to show that, tested by actual use, this walk was in an improper condition, for the ice complained of had disappeared, and as a result the walk had been restored to its usual condition nearly two years before.

It was, therefore, the right of the defendant to have this incompetent evidence excluded. This right was denied to it, and as we cannot say that the defendant was not injured by the error, the judgment should be reversed.

Judgment reversed, and new trial granted, with costs to abide the event

All concur, except Bradley and Haight, JJ., not sitting.  