Ochs v. Kroehle , 185 A.D. 374 ( 1918 )

Smith, J.:

The action is brought to recover damages against the defendants for an injury occurring through the plaintiff’s slipping upon the ice in front of the defendants’ premises, the claim being that the water forming the ice was negligently thrown upon the sidewalk by the defendants’ janitor. The evening was very cold, and if the water had been thrown upon the walk by the janitor it might have frozen and caused the dangerous spot upon which the plaintiff claims to have fallen.

The difficulty with the plaintiff’s case lies in the fact that there is no legal proof that the janitor did in fact place this water upon the sidewalk. The only evidence to that effect is the evidence of the policeman, Hood, who swears that shortly prior to the accident he called the janitor’s attention to the ice and that the janitor said that he had been cleaning the hah and went to throw the pail of water in the street and some of it went on the sidewalk. While this evidence is in the case unobjected to, nevertheless, the verdict of the jury must have some legal proof upon which to stand. This declaration of the janitor after the doing of the act, and not part of the res gestee, was in no way binding upon the defendants and did not constitute legal proof as against the defendants of the negligent act upon which the verdict of the jury was allowed to rest. The janitor upon the stand denies that he threw the water upon the walk and denies that he so stated to the policeman. The policeman, Hood, reported to the police department that the water was thrown upon the walk by someone unknown. He made an affidavit for the corporation counsel before the trial, in' which he stated that he asked the janitor how the water got there and the janitor replied that he did not know. It will thus be seen that defendants have been charged in damages upon the hearsay declaration of their janitor to a witness who, twice before the trial, had made written declarations to the ■contrary. For lack, therefore, of any legal proof of any act of negligence on the part of defendants, as well as for the reason that the verdict is against the weight of the evidence, the judgment and order should be reversed and a new trial granted, with costs to appellants to abide the event.

Clarke, P. J., and Shearn, J., concurred; Dowling and Merrell, JJ., dissented.