
    Ann O’Shaughnessey, Respondent, v. The Village of Middleport, Appellant.
    
      Municipal'corporation — it does not insure the safety of travelers upon its highways — its duty to remove accumulations of ice and snow from its streets and crosswalks —when a finding that it was negligent in this respect is against the weight of evidence. ■ .
    Municipalities are not insurers of the safety of travelers on the highway, nor are. they bound to anticipate every emergency; they are only required to exercise ordinary care and use ordinary diligence.
    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 is received by the corporations.
    A village cannot be said to be negligent, because, during a period of frequent snow storms and of very cold weather, it failed to remove the accumulated ice and snow from a crosswalk and thus keep the surface of the crosswalk exposed, or because it failed to keep the snow and ice on the crosswalk in- a perfectly smooth condition.
    When, in an action brought against a municipal corporation to recover damages for personal injuries sustained by the plaintiff in consequence of falling upon snow covering a crosswalk, a finding that the municipal corporation was guilty of negligence is against the weight of evidence, considered.
    Williams, J., dissented.
    Appeal by the defendant, The Village of Middleport, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Niagara on the 22d day of J uly, 1903, upon the verdict of a jury for $250, and also from an order entered in said clerk’s office on the 27th day of August, 1903, denying the defendant’s motion for a new trial made upon the minutes.
    
      George F. Thompson and G. R. Sheldon, for the appellant.
    
      George D. Judson and H. G. Richardson, for the respondent.
   Stover, J.:

This action is brought for injuries received from a fall upon a crosswalk, which was alleged to have been in an unsafe condition, by reason of the failure of the defendant to discharge its duty.

The plaintiff, a large woman, weighing 175 pounds, while walking on the crosswalk, on the 11th day of February, 1902, slipped, fell and sustained injuries.

The crosswalk in question leads from a bridge which crosses the canal, across a street running along the side of the canal, and has a descending grade from the bridge to the sidewalk on the opposite side of the street.

The plaintiff’s testimony is that she was picking her way, for it was slippery and “hunky,” and her feet suddenly slipped from under her, and she fell.

The evidence showed that the weather had been very stormy for two or three weeks prior to the time of the accident, snow having fallen every day or two from the twenty-first day of January to the date of the accident; that on the sixth of February there were fourteen inches of snow on the ground ; that an inch and a half of snow fell on the seventh; that on the eighth six inches of snow fell, and that there were twenty inches on the ground ; on the ninth half an.inch of snow fell and on the tenth an inch of snow, making twenty-one inches" on the ground ; that on the eleventh there were twenty and one-half inches of snow on the ground. Teams had traveled the street across the crosswalk, leaving some ridges of snow where the runners of the sleighs had passed.

The evidence of one of the plaintiff’s witnesses was that a severe storm occurred on the twenty-second of January, and he thought the snow on the tenth of February was equal to it.

The evidence further showed that for a week prior to the accident the temperature had been below the freezing point, ranging from one to twenty-four degrees.

The plaintiff explains that in using the word “ hunky ” she means uneven, and that such unevenness was caused by the people walking over the snow.

The evidence'is practically uncontradicted that it was a season of storm and snow fall, with low temperature.

Some of the plaintiff’s witnesses testified that they did not know of the walk having been cleaned, and, under objection, some of the witnesses were allowed to testify that they thought it had not been cleaned or shoveled during the winter. The testimony of the street commissioner of the village was that he cleared the walks of the-village, -employing all the help he could get, and that the day before the accident he shoveled this' crosswalk himself; that it was not shoveled down to the bottom, because to do this would involve the removal of the snow from the street, or render the street impassable for teams, but that he leveled the crosswalk and kept it level with the roadbed ; that the snow at this point was about eight inches in depth, and that the snow on the level was three or four feet in-depth. He also testified that the walk was shoveled on the tenth of February.

It is quite clear from the testimony that plaintiff received her injury from slipping upon the crosswalk, and the question presented in this- case is whether negligence can be predicated against a village for not. removing snow from crosswalks during the stormy portion of the winter.

It is frequently difficult to distinguish between adjudicated cases,, nor is it always profitable to labor to reconcile adjudicated cases-rather than apply well-settled rules of responsibility.

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 corporations. (Harrington v. City of Buffalo, 121 N. Y. 147, citing Taylor v. City of Yonkers 105 id. 209 ; Kaveny v. City of Troy, 108 id. 571.)

In our climate it is impossible to prevent the accumulation of ice- and snow during the winter season, or to remove such accumulations at all times.

The case under discussion is a fair illustration of the difficulties encountered in an endeavor to keep streets in a passable condition during the winter. In the large cities. of the State provision is made for the removal of the snow from the streets, and yet, with large sums of money and convenient methods, it is matter of common knowledge that the larger municipalities are unable to prevent accumulations of snow and ice which lay for days and weeks, despite the greatest efforts to accomplish its removal. In smaller places, and localities where snow storms are more frequent, the removal of snow is impracticable if not quite impossible, so that such provision must be made for the use of the streets with the accumulations of snow and ice, as may be practicable and reasonable. As to the sidewalks the snow may be removed, but as the removal of snow from crosswalks would involve a more dangerous ' condition to the teams and pedestrians than to allow them to remain untouched, as the removal of the snow and ice would form channels, or if ridges in the snow were left simply for the use of teams, the obstruction thus created would be dangerous to pedestrians, so it is quite common to find the snow leveled in the street, and the crosswalks approached either gradually, or kept on a level with the sidewalks.

These observations would seem to be apparent upon the mere suggestion of the situation, but it has been thought advisable to state them here, inasmuch as- the argument is made that it was the duty of the municipality to remove the snow and ice which had accumulated upon the crosswalks.

It is a trite saying that municipalities are not insurers of the safety of - travelers on the highway, and are not bound to anticipate-every emergency, but that they are only required to exercise ordinary care, and use ordinary diligence in whatever situation they may be placed; and yet it seems necessary to reiterate this doctrine in order to prevent the extension of precedent for submission of cases of this kind to the jury. Applying this rule to this defendant, it. cannot be said that it was negligent in not keeping the surface of the crosswalk exposed, nor was it -negligent in not keeping a perfectly smooth walk for pedestrians. It was bound to keep the street in a reasonably safe condition for the passage of both teams and pedestrians. And while the question of negligence was submitted in general terms, and with the charge that only reasonable care was to be exercised, yet we think the proof shows that a finding that there was negligence on the part of the defendant in the care of this highway was against the weight of evidence and unwarranted by the testimony.

If a recovery can be sustained under the testimony in this case, a village has but small hope of escaping responsibility for injury to any one who may happen to slip upon one of its crosswalks in the winter.

Sidewalks and crosswalks are liable to become dangerous in the winter, but such dangers are apparent to all, and as stated in Harrington v. City of Buffalo (supra),Accidents occurring from such causes are chargeable solely to the persons injured, unless it can be shown that the cause thereof has been occasioned, aggravated or negligently permitted by the act of some third party charged with the duty of obviating or removing it.”

In this case the accident occurred about three o’clock in the afternoon, the. person injured having full knowledge of the condition of the street, and yet the only explanation of the accident is that “ the two feet were taken right out from under me.”

We think it was incumbent upon the plaintiff to bring herself within the rule above quoted, and the evidence fails to do this.

There were some exceptions taken upon the trial which we deem well taken, but, for the reasons above stated, the judgment and order should be reversed and a new trial granted, with costs to the appellant to abide the event.

All concurred, except Williams, J., who dissented.

Judgment and order reversed and'new trial ordered, with costs to the appellant to abide event, upon questions of law and of fact.  