
    Albertina Rodrigues, Respondent, v. The President and Trustees of the Village of Ossining, Appellants.
    Second Department,
    March 2, 1906.
    Uegligence — when municipality not liable for ’fall of pedestrian on defective sidewalk — a fall caused by snow.
    The plaintiff, while walking on a flagstone two and a half feet in length, with a slope cf twc and a half inches, joining two sections of sidewalk having different levels slipped on such incline, owing to snow thereon, and her foot catching on the flagstone at the foot of the slope, which was raised one-half of an inch above said sloping stone, fell' and was injured.
    
      Held, that the injury was caused by the slipping of the plaintiff on the snow and not by the slope, or by the lower stone projecting above the same, hence the municipality was not liable. ,
    Appeal by the defendants, The President and Trustees of the Village of Ossining, from a judgment of the County Court of Westchester county in favor of the plaintiff, entered in tlie office of the clerk of tlie county of Westchester on the 1st day of July, 1905, upon the verdict of a jury for $200, and also from an order entered in said clerk’s office on the 31st day of July, 1905, denying the defendants’ motion for a new trial made upon the minutes.
    
      Frank L. Young, for the appellants.
    
      Pierre Reynolds, for the respondent.
   Hooker, J.:

The plaintiff, a woman of seventy-one years of age, has recovered a verdict against the defendants for injuries she sustained because of the alleged negligent maintenance by defendants of a sidewalk in Spring street in the village of Ossining. At the time of the accident there were two grades within one block on that street, the sidewalk along the south side of the block being of a higher grade than that along thé north end; these two grades were connected by a sloping flagstone .two feet six inches long in the direction of the length of the street, the north end of the stone being two and one-half inches below the south end. The flagstone on the lower, grade next adjoining the sloping sto’ne on the north was raised above the latter so that the south end of that flagstone protruded upwards, at the joint with, the sloping stone one-half of an inch..

At -about eight o’clock in the evening the plaintiff, walking northerljq approached -this slojting stone; she wore rubber shoes and carried an umbrella. Tlie sidewalk was covered with snow from a ■sixteenth to an eighth pf an inch in. thickness that had fallen during the day, The place was not Well lighted.

. That.branch of the case which dealt-with the plaintiff’s contributory negligence was correctly submitted’ to the jury, and with their verdict we may not interfere so far as that, question is concerned. The constructive notice to the.defendants was amply shown. But we feel that the verdict is not to be sustained, upon the question pf the defendants’ negligence. ' •

At the close of the plaintiff’s- case’ the defendants moved for á nonsuit on the ground that the evidence failed to establish any negligence on their part, and, an exception was taken to its denial. The motion-was renewed at the close of all the evidence; it was denied and defendants-excepted. . .

There seemed to be no controversy at the trial that the mere fact' that the snow existed on the sidewalk,, by which it. was. made slippery, did not render the defendants liable. Although there was evidence in the case tending to show that others had slipped and fallen on this same stone before the trial and when the ground was. free from snow, we are of the opinion that the evidence negatives the conclusion that the snow was not the cause of the unfortunate accident.

The plaintiff’s, description of the exact way in which she was hurt. is. meagre and does not seem to be,sufficient to furnish a clear idea in that regard. She says that she came to ■ this stone and slipped. She says“Jrslipped with the foot and my foot came, against something, and I fell and-kicked it and it threw- me back.” ; It is quite evident that as her foot 'was' planted- upon the sloping stone .she slipped downward until it came into contact with ..the stone next adjoining on the' north, which rose above the lower end of the slanting stone half an inch at the joint, and it must -be that this riser is what caught her foot and’ threw her. Had the plaintiff not slipped on the slanting stone, it is unreasonable to suppose’ she would have .met- any injury. The difference in grade of half an inch between the northerly end of the sloping stone and the southerly end of the stone immediately adjoining it was so slight that we believe no careful or prudent man would reasonably anticipate danger from its. existence. The unevenness of the walk at the precise place where the plaintiff’s slipping foot was caught was insignificant, and the facts, so far as they bear upon this point, are much more strongly in favor of the defendants than the facts which were considered in the case of Beltz v. City of Yonkers (148 N. Y. 67). Them thq, depression existed in the middle of a flag sidewalk, of a depth of the thickness of the surrounding flag,' .caused by the removal of a small piece of broken stone. The depth of the' hole was about two ’ and one-half inches*, and the surface area was about two feet two inches in length by seven and one-half inches in width. The alleged fault of the sidewalk in the present case is that one flagging projected half an inch above another across the width of so much of the sidewalk as was jiaved, and upon this branch of the case the decision in Beltz v. City of Yonkers (supra) must control in defendants’ favor.

Both parties argued to considerable extent in their briefs in respect to the sloping character of the stone, and respondent-seems to hold that the defendants were-negligent in allowing this sloping stone to exist as it did. As we read the evidence, this question is not important for this reason : Had the plaintiff not slipped it is not to be supposed that she would have caught her foot against the riser and fallen, and her own evidence leads to the belief that it was the snow and not the sloping stone that caused her in the first place to slip. She says : “ I suppose it was the snow that caused me to slip on that stone.” The case was tried on the theory, however, that if the snow caused- the injury the defendants were not liable, .and that is doubtless the law. (Buck v. Village of Glens Falls, 4 App. Div. 323; McCarty v. City of Lockport, 13 id. 494.) This plaintiff- would not have fallen if she had not first slipped, and she herself says that the slipping was due to the snow.

Jenks, GIaynor, Rich and Miller, JJ., concurred.

Judgment and order of the County Court of Westchester county reversed and new trial ordered, costs to abide the event.  