
    John C. Durr, App’lt, v. The Village of Green Island, Resp’t.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed September 15, 1893.)
    
    Municipal corporations—Nb«liqence.
    Plaintiff was injured by falling upon a slippery sidewalk in the defendant village. It appeared that during the previous month snow and ice had been allowed to accumulate and was not removed by the village; that two days before the accident a storm of snow and sleet covered the sidewalks of the village and rendered them generally slippery, and that the temperature continued below freezing. Éeld, that as_ it appeared that the injury resulted from one of two causes, for one of which the village would be liable and for the other it would be exempt, in the absence of proof as to which produced the injury, a nonsuit was proper.
    
      Appeal from a judgment entered upon the decision of a judge at circuit, dismissing the complaint
    
      Doyle & Fitts (Charles F. Doyle, of counsel), for app’lt; Smith & Wellington (George B. Wellington, of counsel), for resp’t.
   Mayham, P. J.

The plaintiff brought this action for an alleged injury resulting to him from a fall on the sidewalk in the village of defendant, which fall plaintiff alleged he suffered by reason of the defendant’s negligence in suffering ice to accumulate thereon.

The evidence shows that during a portion of the month of November, and down to the last of that month, snow and ice had accumulated on the sidewalk on Pine street, in that village, and had not been removed by the village authorities; and that the same was about six inches in depth at that time; and that by reason of pedestrians passing over it it had at times when the temperature was high become soft and marked by foot-prints so as to present a rough and uneven surface, and in that condition had frozen.

Upon the 1st or 2nd of December following there was a precipitation of snow and sleet covering the entire surface of the sidewalk and rendering the sidewalks in the village of Green Island generally slippery. From that time until the 4th of December the temperature had been constantly below freezing point, ranging from nineteen degrees down to eight degrees above zero.

On the night of the 4th of December the plaintiff, while passing along and over the sidewalk on Pine street, stumbled or slipped from the icy portion of the sidewalk and fell and was seriously injured. For this injury he brings this action.

On the trial the plaintiff was non-suited on the ground that it was apparent from the evidence that the injury resulted from one of two causes, for one of which the defendant would be liable, and for the other the defendant would be exempt from liability.

We think the learned judge was right in his determination and that his decision must be upheld upon the evidence. It is, we should think, clear that the village of Green Island was negligent in allowing snow and ice to accumulate upon the sidewalk, as the evidence showed it to have done, without any effort on the part of the defendant to remove it during the month of November.

The testimony discloses that the temperature was sufficiently mild to soften the ice and snow on the sidewalk during that month, and thus rendering it reasonably possible for the village to have removed the accumulation, and. if this action had been prosecuted for injuries occuring before the precipitation of snow and sleet on the 2nd of December, it is quite probable that legal negligence might have been established against the defendant which would authorize a recovery, but the precipitation of sleet and snow on the 1st and 2nd of December, followed by a severe freezing condition of temperature and producing a general icy and slippery condition of the sidewalk of the entire village, makes it uncertain whether the injury resulted from this latter condition or from the condition existing on the last of November.

If the icy condition produced by the sleet and snow on the 1st and 2d of December produced the injury, then clearly within the decision of Taylor v. City of Yonkers, 105 N. Y., 208-9 ; 7 St. Rep., 332, there would have existed two causes, for one of which the defendant would be liable, and for the other of which it would not be liable, and the jury could not properly be permitted to speculate as to which of the two causes produced the injury.

In such a case the plaintiff must fail if his evidence does not show that the damage was produced by the former cause.” Searles v. Manhattan R. Co., 101 N. Y., 661.

This the plaintiff did not show by his evidence.

The judge was therefore right in refusing to allow the jury to speculate as to which of the two alleged causes produced the injury. Taylor v. City of Yonkers, supra; Kaveny v. City of Troy, 108 N. Y., 576-577; 14 St. Rep., 18; Tobey v. City of Hudson, 17 St. Rep., 454.

We think within these authorities the plaintiff failed to establish negligence on the part of the defendant for which it can be held liable and that the judgment should be affirmed.

Judgment affirmed, with costs.

Putnam and Herrick, JJ., concur.  