Battersby v. Mayor of New York , 7 Daly 16 ( 1877 )

Charles P. Daly, Chief Justice.

The exceptions should be overruled. All that is shown by the plaintiff’s own testimony is that he was crossing from the easterly to the westerly side of Nassau street, about four o’clock in the afternoon of March 11, 1875, and when he got to the middle of the street, he put his foot on a pile of mud and his foot sunk in the mud, and slipped from under him, when he fell,, breaking the outer bone of his leg, a short distance from the ankle joint. He thought that there was ice under the mud, and that it had melted a little or slowly by the warmth of the mud, but he did not see the ice; and even if he had, it would have made no difference. It was one of those ordinary accidents that may occur to any one in the streets, in winter, and for which no one is responsible. It appeared from the evidence, that in the winter of 1875, there was more than the usual number of snow-storms; and more snow than during any winter of late years; that everywhere on all the streets, there was a considerable' accumulation of snow and ice ; and that three or four days before the accident, there had been a severe snow-storm.

To hold that the city authorities must, under all circumstances and at all times keep the street clear of any snow, ice or mud, would be unreasonable, especially in winters like this and the preceding one, where, through the constant occurrence of snow-storms, the streets .of the city are in the condition that .this street was in at the time of the accident. The evidence shows that there was a reasonable amount of vigilance shown on the part of the city authorities; that this street—Nassau street—had sometimes been cleaned entirely off; that every other day there were cleaners in it; and that the snow was taken off and around this crossing ; that men were engaged cutting the ice and sweeping the street; that on the day in question, it was full of ice and slush about the crossing, or as another witness expresses it, “ there was mud and slop in the street; it was a .slippery day and there were lumps of ice in the street.” In the neighborhood of this crossing it was in a bad. condition, but the witness did not know how long. It appears further, as I have said, that there was a fall of snow a few ■days previous to the accident, and that persons were then ■employed cleaning the street, and that every other day persons were so engaged.

I do not think that the evidence was such as would justify a jury in finding that the plaintiff’s accident was due solely to the negligence on the part of the defendant, and I think the motion to dismiss the complaint was properly granted.

Robinson and Labbemo'be, JJ., concurred.

Exceptions overruled.