
    Mary Ann Thuringer, Resp’t, v. New York Central and Hudson River Railroad Company, App’lt.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed December 7, 1894.)
    
    1. Negligence—Icy sidewalk.
    The owner of a tank, from which water drips and freezes on the sidewalk, is liable to persons injured by slipping thereon.
    2. Same—Question of fact.
    In such case, it is for the jury to say whether the owner was negligent, and whether his negligence contributed to the injury.
    
      Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.
    
      G. D. Prescott, for app’lt; Timothy Gurtin, for resp’t.
   Martlet, J.

This action was brought to recover damages alleged to have been sustained through the wrongful or negligent acts of the defendant, in permitting the water from its water column used in supplying its engines to escape and flow upon the sidewalk, and to accumulate and freeze thereon, so that it became icy, dangerous, and an obstruction to the public travel, by reason of which the plaintiff fell and was injured. The evidence of the plaintiff tended to show that the water, which dripped from this column while being shut off, ran upon, or was carried by the wind onto, the sidewalk of James street, in the city of Rome; that the drain which usually carried off the water was allowed to become blocked by ice and snow, and the water allowed to continue to flow upon the sidewalk, which became icy and dangerous; and that on the 10th of January, 1892, the plaintiff, walking on such sidewalk, slipped upon the ice which had accumulated thereon, and received the injuries complained of. The evidence of the defendant tended to show that the condition at the water column, and of the sidewalk at the point where the accident occurred, was not as testified to by the plaintiff’s witnesses. ' Upon the whole evidence the court submitted to the jury the question whether the defendant was negligent in permitting the water to flow upon the sidewalk and freeze, so as to render it dangerous for persons passing over it, and also 'the question whether the plaintiff was guilty of contributory negligence. The jury found in favor of the plaintiff on both.

On a former appeal in this case, where the evidence was substantially like that now before us, it was held that the questions of the defendant’s negligence and the plaintiff’s freedom from contributory negligence were questions of fact. 71 Hun, 526; 55 St. Rep. 87. We think that decision should be followed, and that both' of these questions were properly submitted to tho jury. McGoldrick v. N. C. & H. R. R. R. Co., 49 St. Rep. 566; affirmed 142 N. Y. 640; 60 St. Rep. 866; Chisholm v. State, 141 N. Y. 246; 56 St. Rep. 811.

The defendant also claims that the city of Rome was alone liable, and that this action cannot be maintained against the defendant. The McGoldrich Case, supra, arose at the same place, under circumstances quite similar to those proved on the trial of the case at bar. On an appeal to this court in that case the question here presented was raised, and decided adversely to the defendant. As that case was affirmed by the court of appeals, we think it is decisive of the question under consideration, and requires us to hold adversely to the defendant’s claim. Under the evidence, the questions whether the defendant fell upon the sidewalk, and whether the sidewalk was made icy and dangerous by water from the defendant’s water column, were clearly for the jury.

On the trial the defendant asked the court to charge as follows: ■it I ask your honor to charge that, if the ice upon which she fell is found by the jury to have been formed after two o’clock in the afternoon, that the plaintiff cannot recover.” The court replied: “Well, I decline to charge that, for some of your own witnesses swear to the accustomed formation of ice there, to a certain extent.” To this the defendant excepted. We find in this ruling no error that would justify a reversal of the judgment. As no other questions are raised by the appellant, we are of the opinion that the judgment should be affirmed.

Judgment and order affirmed, with costs.

All concur.  