
    John A. Foley, Resp't, v. The City of Troy, App'lt.
    ' (Supreme Court, General Term, Third Department,
    
    
      Filed July, 1887.)
    
    1. Municipal corporations — Liability for injuries arising from defective CONDITION OF HIGHWAY.
    In actions against a city to recover damages for injuries received through, the defective condition of the defendant’s streets, the plaintiff must show negligence on the part of the defendant and prove either actual notice of the defect or constructive knowledge thereof arising from lapse of time.
    2. Same—What proof insufficient to sustain charge of negligence.
    Proof as consistent with the theory that the ice which occasioned the accident was not caused by rain or snow, as that it was caused by snow falling on the day on which the injuries were received, is not sufficient, as it does not exclude the possibility of its formation from water intentionally or accidentally spilled.
    
      Alden & King, for resp’t; R. A. Parmenter, for app’lt.
   Learned, P J.

This action was commenced in June, 1881, and was tried in November, 1886. It was brought to recover damages occasioned to plaintiff by his slipping on some ice upon a sidewalk in Troy, on the evening of January 28, 1881. There is proof that at the time he slipped and fell, there was hard ice on the sidewalk; and that plainiff was seriously injured by his fall.

No direct evidence was given that the ice had been on the sidewalk for any time prior to the accident. The plaintiff claimed to show that the ice had been for some time on the sidewalk by evidence of the condition of the weather for a week previous. He showed that, for that time, the temperature of the weather was below the freezing point; that the seventeenth of January was the last time that the temperature rose above the freezing point, prior to the accident. And the plaintiff argued from that fact that ice could not have formed from natural causes on the sidewalk for at least a week previous to the time of the accident.

We think that such evidence was insufficient to justify the jury in holding the city to have been negligent. All the facts shown are consistent with the theory that some person threw water on the sidewalk that evening and that it then froze. The mere fact that there was snow on the 22d of January, and none after that and up to the 28th, does not establish, nor is it sufficient proof, that the ice on the sidewalk the 28th was caused by the snow of the 22d. Of course in actions of this kind the plaintiff must show negligence on the part of the defendant; and this requires proof either of actual knowledge, or of what may be called » constructive knowledge, arising from length of time.

No actual knowledge is shown. Therefore proof must be given that the ice had been there so long as to justify the finding of constructive knowledge.

Now the plaintiff’s evidence that no ice or snow had fallen after the 22d, is just as much proof that this ice was not caused by rain or snow at all, as it is that it was caused by the snow of that day. That is, the evidence is equally consistent with each hypothesis. If nothing but snow or rain could cause ice, then the evidence would be effectual. But the ice might be formed from water accidentally or intentionally, spilled.

It is very evident that the decisions of our highest court, in this class of cases, are imposing upon cities in the northern part of the state a burden in regard to the snow and ice of the winter, which is very oppressive. To require a city to clean off the snow and ice from all its many miles of sidewalks, or to be liable to any one who may slip thereon, is to place upon it a duty needing large expenditures and numerous officials. It is perhaps a questionable construetion, which has evolved this duty from the mere obligation of keeping sidewalks in repair.

Under these decisions, however, all that we can do is to see that the proof shall be sufficient in each case to meet the rules established; until, at least, our highest court shall begin to “ distinguish,” and let the pendulum swing the other-way.

In the present case, we think the evidence insufficient to show constructive notice. The jury could not reasonably, in this case, ascertain “whether one fact had being from another fact,” and therefore should not have been allowed “ to go through with that process.” Hart v. H. R. B. Co., 80 N. Y., 622.

Judgment and order reversed, and new trial granted. Costs to abide the event.

Landon and Bockes, JJ., concur.  