
    Jacob Gramm, Resp’t, v. The Village of Greenbush, App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed November, 1888.)
    
    'Municipal cobpobations—Liability fob slippeby sidewalks.
    In an action to recover damages for injuries suffered by the plaintiff from falling upon an icy sidewalk, it appeared that there was ice upon the sidewalk at the place where the accident happened about two inches thick; that there was ice generally over the sidewalks of the village at the time, caused by the rain and snow of some days previous and the subsequent cold. Held, that the evidence of negligence was not sufficient to render the city liable or warrant a recovery. Citing 2aylorv. Yonleers(105 N. Y., 206), 7 3ST, T. State Rep., 332, and subsequent cases. Ingalls, J., dissenting.
    Appeal from judgment in favor of plaintiff, entered upon a verdict rendered by a jury at the county court of Rensselaer county, and from an order denying new trial.
    
      H. S. Lary, for app’lt; A. J. Parker, for resp’t.
   Learned, J.

At the place where plaintiff fell it had been Icy for two or three weeks. The cause, as stated by a witness, was that there had been a thaw, and instead of the 'ditch or gutter being open to allow the water to run there, it had run over the sidewalk. According to one witness, it 'had rained two nights before the day of the accident and froze very hard after the rain. It was very slippery on the sidewalk and the sidewalks were about the same all over the village.

According to the records of the signal service, it rained and snowed five days before the day of the accident and not afterwards, but continued cold.

There seems to be no, proof that the ditch or gutter was out of order. Probably the witness means that it was filled up by the ice.

Proof was given that there were no ashes or proper materials put on the ice° to prevent slipping. But the village was not bound to sprinkle sand or ashes on the side walk. Taylor v. Yonkers, 105 N. Y., 206; 7 N Y Statb Rep., 332. Therefore, there was no negligence in that .respect. Something more than a slippery sidewalk must be shown to make the village liable. Kinney v. Troy, 108 N. Y., 567 ; 14 N. Y. State Rep., 15. That statement, by the court of appeals does not mean simply that the city-must have had notice, because the court is speaking of the? condition of the sidewalk, not of notice of that condition.

. In the present case there seems to have been nothing special at the place of the accident. There was ice thereof, perhaps, some two inches thick. So there was ice generally over the sidewalks of the village, caused by the rain, and snow of some days previous and the subsequent cold. And to show the village negligent, we should have to hold, it to have been their duty in these five days to remove, or-caused to be removed, all the ice from all the sidewalks in the village.

Under the principles laid down by the court of appeals in the three late cases, those of Taylor, Kinney and Kavery, we think that a cause of action was not made out against-the village. We may notice, also, the Muller Case, 32 Hun, 24 ; affirmed 105 N. Y., 668 ; 8 N. Y. State Rep., 110. The plaintiff should have been nonsuited.

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

Landon, J., concurs.

Ingalls, J.,

dissenting-This action was brought by plaintiff" to recover damages for an injury occasioned by his falling-upon a public street in Greenbush, which as he claims, had become dangerous in consequence of an accumulation of" ice which the defendant negligently allowed to remain an unreasonable length of time.

The action was tried in the county court and the jury rendered a verdict in favor of the plaintiff for $475, upon. Which judgment was' entered in his favor. ' The defendant-, made a motion for a new trial in the county court, which was denied and an appeal has been taken by the defendant, from such order. It is insisted -by the counsel for the respondent that this court possessed no authority to review the judgment or order of the county court upon.the merits. This contention seems to be supported by authority. Reilley v. President, etc., of Delaware and Hudson Canal Company, 102 N. Y., 383; 2 N. Y. State Rep., 419; Thurber v. Townsend, 22 N. Y., 517; Baker v. Remington, 45 N. Y., 325.

The Laws of 1888, chapter 507, cannot have the effect to confer upon this court authority to review upon the merits of this case, because the judgment was entered, and the appeal, was brought before the enactment of said statutes. Ely v. Holton, 15 N. Y., 595; Moore v. Mausert, 49 N. Y., 332.

If this court had the power to review the merits, we do-not think the defendant presents a case which calls for the-reversal of the judgment, and the granting of a "new trial. The evidence is conflicting, and we are convinced that it-does not preponderate in favor of defendant so decidedly as to leave the plaintiff’s case unproved in regard to his entire -case, or as to any material question involved therein.

In the light of the more recent adjudications upon this subject, it has became a matter of no little difficulty to determine in this class of cases, the nature and extent of the evidence which the plaintiff will be required to produce at the trial in order to render a municipal corporation chargeable with negligence, and therefore liable to respond in damages for an injury occasioned by its neglect to cause ice to be removed from its streets. Such difficulty arises, in a great measure from the changeable nature of our climate which is subject to such frequent, and sudden alternations of heat and cold, whereby ice is suddenly formed and dissolved.

This, however, does not excuse a municipal corporation from the exercise of care and vigilance in keeping its streets :in a reasonably safe condition, by removing ice from its ¡sidewalks, which is necessary to be done in order to render them safe for those who have occasion to use them.

In the case we are considering the question was fairly "presented, whether the ice was allowed to accumulate and 'to remain upon the street where the plaintiff fell for such a length of time, and in such quantity, as to render the sidewalk unsafe, and to make the defendant chargeable with negligence in not removing the ice therefrom.

The examination of the facts of this case has convinced us that at the trial a fair question of fact was presented for the consideration of the jury in regard to the defendant’s megligence, and we fail to discover any substantial ground Tor interference with the verdict rendered or the judgment entered thereon. This case is distinguishable from a class of cases where the ice forms so near the time when the casualty occurs as to render it apparent that it could not have been removed by the exercise of reasonable care and vigilance on the part of the servants of the municipal corporation, and therefore no liability attaches against the corporation for an injury occasioned by falling upon ice thus formed. Such cases are exceptional and present a question of law only for the determination of the court.

We do not think it can reasonably be said that the plaintiff failed to make a fair case upon the merits, and whether the defendant, by its evidence, overcame such ¡case, becomes a question of fact for the jury to settle.

Dr. W. Parker Pike, a witness for plaintiff, testified: “I was acquainted with the condition of this sidewalk on "Harrison avenue, just above the intersection of Broadway, .and before the time Gramm fell there; it had been icy for •.some time, two or three weeks at least; there had been a Thaw, and instead of a ditch or gutter being opened to allow the water to run there, it had run over the sidewalk right around the corner of the building; that froze after it flowed over in that way; my attention was called to it by Mr. Gramm at the time he told me where he fell, and I looked at it when I came up; I had known of its condition before that, from the fact that I stabled my horse on First «treet, and I always went off on the north side of the street; there had been no appreciable difference in the looks of that sidewalk for three weeks before Gramm fell; I don’t think there was any material difference in the atmosphere for about a week; no melting that I remember.”

The witness Boyland testified: “I know the time he '(Gramm) fell there; it was very cold weather, and severe weather; and that there had been a thaw previous, or just previous to his falling, and that there was, to my knowledge, •at the least calculation, from two to two and a half inches of ice on the sidewalk at the time he fell; to the best of my knowledge, the sidewalk had been three or four days in the same condition that it was the morning he fell, without any change; it had been cold during that time, very severe weather.”

This witness, upon his re-examination, testified: “There were no ashes on there for two or three days previous to his falling; it might have been longer; for that time I am positive.”

The witness Edwin S. Brown testified: “I was acquainted with the locality, the sidewalk on Harrison avenue, just above Broadway, before Gramm had fallen there, it was icy and slippery, frozen full of ice; I couldn’t tell exactly how long before; it was in that shape three or four days, about four days, I think.”

Walter Kraft was examined by plaintiff and testified.

Walter Kraft, sworn for plaintiff, testified: “I reside in "the Boston hotel, Broadway, East Albany; I remember that Gramm was injured by falling on the sidewalk; I heard of it about fifteen minutes after he fell; the sidewalk on Harrison avenue, at the intersection of Broadway, was pretty icy at that time; at the time of his falling it was very icy; before that it had been icy you might say all winter, but there had been a thaw five or six days before that, and the water had gone where it was a mind to, right over the gutter and drains; it had been frozen after a thaw; there was change after the water flowed over it and had frozen; there was cold weather that day.”

Q. How was it for the week before ? A. There had been .a-light rain and froze up sudden; after the rain and freezing there was continuous cold weather down to and until after this accident; it had been cold four or five days certain.

Q. Had there been any ashes or sand during that four or five days put on there % A. I think I saw some sawdust on there a little while, but it blowed off; that was two or three days before he fell.

Q. Had there been any sand or gravel on there after the-thaw and after the freezing, down to the time he fell ? A.. I think not, unless there was sawdust and that blowed off.

By the court—Q. As I understand you, there was a rain-that produced a thaw ? A. A sort of a small thaw; it made the water run over the walk.

Q. And it froze up suddenly and continued cold and frozen up four or five days down to this accident ? A. Yes, sir; that is what I mean.

The defendant endeavored by the cross-examination of such witnesses, and by the testimony of other witnesses, which the defendant produced to overcome the ' case made by the plaintiff, and was so far successful as to create a fair question of fact, upon the merits of the entire case, for the jury to determine whether the injury, of which the plaintiff complained, was caused by the negligence of the defendant, in allowing such sidewalk to become in a dangerous condition in consequence of an accumulation of ice, and by allowing it to so remain for an unreasonable length of time. We conclude that the verdict rendered by the jury was so-far supported by the evidence, that this court should not interfere with the judgment entered thereon. Hart v. The Hudson R. R. R. Company, 80 N. Y., 622; Payne v. Troy and Boston Railroad Company, 83 N. Y., 572. It appears-by the case that the county judge who presided at the trial, heard an argument by the counsel upon both .sides, upon the motion to set aside the verdict, and denied the same. We think the decision was correct, and should be sustained. We discover nothing in the. conduct of the plaintiff, as disclosed by the evidence which should charge him with contributory negligence. He was not to be excluded from the-use of the sidewalk, because the defendant negligently allowed it to become, and remain, in a dangerous condition;, nothing in the evidence indicates that the plaintiff did not. take every reasonable precaution to prevent falling. At all events the jury determined that question favorably to the-plaintiff, and their verdict, in that respect, is sustained by the evidence. We have examined all of the exceptions, taken by the defendant’s counsel upon the trial, and discover no error which should induce this court to reverse the. judgment; and the same should be affirmed with costs.  