Ayres v. Village of Hammondsport , 26 N.Y. St. Rep. 634 ( 1889 )

Macomber, J.

A subtle attempt has been made in the argument in behalf of the appellant to bring this case within the decision of Taylor v. City of Yonkers, 105 N. Y. 202, 11 N. E. Rep. 642. The facts, however, disclosed upon the trial, do not, in our judgment, make applicable this and other like authorities. The action is to recover damages for personal injuries resulting from negligent construction and maintenance of a sidewalk in the village of Haminondsport, and the negligent suffering of ice to accumulate and remain thereon so as to render it unsafe for public travel. The place of the accident was on Sheather street, running east and west through the village, and at a point by the St. James Hotel, the southerly line of the sidewalk being the front wall of the hotel building. The sidewalk in front of the hotel was ten feet and two inches wide, though the other portion of the walk west of the hotel was only about four feet wide. There were two irregular steps in the sidewalk by the east end of the hotel. In traveling eastward the first step down was to a tread of thirteen and one-half inches wide and seven feet seven inches long, and the distance down to the next tread was four inches to a tread which was three feet wide and seven feet seven inches long, and the distance down from that tread to the level of the adjoining building, known as the “Beck Building,” was eight inches. The pitch or grade of the sidewalk by the hotel was much greater than that of the rest of the street. While the walk westerly of the hotel had generally only the usual pitch towards the street of about one inch in three feet, and about the same pitch at the westerly end and front of the hotel, there was a slope of seven inches at the westerly part of the walk in front of the hotel, where some of the witness say the walk gradually tilted down. The hotel had a mansard roof without eave-troughs, and the drip was directly upon the sidewalk. The easterly portion of the sidewalk had so settled as to cause a crack in it down the center of the hotel, making the east side lower than the west, so that both from the settling and the gradual tilting of the walk towards the east the tendency of the dripping water was towards the easterly end of the walk where the steps were. Ice frequently accumulated at this point when the walk was otherwise dry. A ridge of ice had formed from the drip two or three feet from the wall, and pedestrians naturally crowded towards the building on account of the slope in the walk. There was much evidence given to the effect that the walk had been covered with thick ice, in some places ridged, for a period of three or four weeks preceding the injuries. The place seems to have been generally recognized by the residents as a dangerous spot. At the spot where the plaintiff fell, which was the easterly plank of the St. James walk, a little to the right of the middle of the plank, the walk had a slope, as some witnesses say, of about eleven inches when the accumulation of the ice is added to the slant of the walk itself. Other testimony showed that the accumulation of ice was greater towards the middle than at the edge, for near the outer edge the same had been worn or melted off. The whole of this place was smooth. The plaintiff, while walking towards the place, did not discover that there was any ice on the walk until he was near the steps, when his foot slipped towards the street. There is no fact disclosed that put him ■especially upon his guard as to this dangerous place in the sidewalk; indeed, he seems to have been ignorant of its actual condition until the instant of receiving the injuries.

These facts, which were established by the evidence adduced in behalf of the plaintiff, rendered it incumbent upon the court to submit the whole question of the liability of the village, as well as the alleged contributing negligence of the plaintiff, to the consideration of the jury. Their verdict, being supported, as it is, by a clear preponderance of the evidence, cannot be disturbed by us.

We have examined the several exceptions taken by the defendant during the trial, and find in none of them any matter which would justify us in sending the case back for another trial. The judgment and order should be affirmed.