Muller v. City of Newburgh , 39 N.Y. Sup. Ct. 24 ( 1884 )

Peatt, J.

(dissenting):

I have concluded that this case should have been submitted to the jury and hence that a new trial should be granted. Plaintiff slipped and fell upon an icy place iu defendant’s sidewalk about eight p. M., Sunday, January 9, 1882. A light snow had been falling from about one o’clock p. m. until the accident. I do not regard this fact as an element of any importance on this appeal, except so far as it illustrates the dangers resulting from the previous condition of the walk. The storm was too recent to justify the inference of defendant’s knowledge of this new or increased danger. (Blakeley v. City of Troy, 18 Hun, 167.) The difficulty with the case results from the previous condition of the street. There was testimony tending to show that from the preceding Thursday the walk had been in a dangerous condition resulting from an accumulation of snow and ice to the depth of three or four inches, and that no ashes or other material had been used to obviate this danger. It does not appear whether this dangerous condition arose from smooth or uneven slipperiness, nor does it seem important in my view of the case. It may have been uneven. Ordinary observation teaches us that snow may become padded or packed upon a sidewalk in little mounds and even in ridges. If that was the cause of the danger the case might face within the precedents applicable to uneven walks, for it appears the accumulation was-three or four inches in depth. So, too, it might have been smooth but no less dangerous. It is enough that the witnesses, without objection, declared that the walk was in a dangerous condition because of this accumulation of ice and snow; dangerous because slippery, and therefore especially perilous in view of the possibility of future light snow storms which would certainly , obscure and perhaps increase the danger. I cannot concur in the views that the defendant was not liablé because this accumulation of ice resulted from natural causes'as distinguished from human agency. The defendant was bound to keep its streets in a safe condition. Its liability does not depend upon the cause which resulted in the dangerous condition of the walk. If it had become obviously and notoriously dangerous from natural causes the liability, in my view, would be quite as plain as if the peril resulted from the wrongful act of some trespasser. I fail to discover any material distinction between cases of danger from mere slipperiness of the walk, the result of defective construction (Cromarty v. City of Boston, 34 Am. Rep., 381; 127 Mass., 329), or snow and ice or other slippery substance unreasonably left upon it. (Todd v. City of Troy, 61 N. Y., 506.) It is quite as much an obstruction to the traveler that he slip down, as that he stumble over some projection or, step into some depression and fall down. So, too, he is equally obstructed whether he be required to avoid a projection, a pitfall or a slippery place in the street. The only distinction in any way affecting liability between defective construction and subsequent obstructions lies in the degree of activity required to remedy the difficulty. In the former case the municipality would be presumed to know the defects in construction and would be required to act immediately, while in the other some notice, either actual or constructive, would be necessary before the duty of action would arise. Rut whatever may be said of the case on principle, it seems to me that the recent authorities clearly indicate the duty to remove or otherwise obviate a known danger resulting from snow and ice, whether their presence result from natural causes or from some unauthorized human agency. In Todd v. City of Troy (61 N. Y., 511), the trial judge charged the jury that the municipal authorities are called upon to observe, notice and see that the public streets, in time of winter, are reasonably cleay'ed of snow and ice, and that if the presence of ice upon the sidewalk did occasion the fall of the plaintiff, and the ice was slippery by reason of cold weather, then the defendant is not liable unless it also appeared that the accumulation of ice at that point had remained there so long as to make the obstruction public and notorious. These rules were unqualifi-edly stated and have been unqualifiedly affirmed. I think they state the principle which applies to and governs this case.

The remaining question relates to the constructive notice of the dangerous condition of this walk, for no ^actual notice was asserted. I cannot say that the interval of three or four days, between Thursday and this accident, was too short a time for such a condition of the street to become notorious; at all events it seems that a jury might, properly have drawn that inference. The question of contributory negligence is, of course, in the case; the plaintiff had better opportunity to discover this danger than the defendant’s officers. It had all the while existed within seven feet of his own door. He had been in the street. If the defendant was chargeable with notice of the fact, it would be odd indeed if plaintiff had failed to discover the same difficulty. But he may not have known it. If he did not know it he stood in especial danger. It is obvious that this also was a question for the jury. (Todd v. City of Troy; Blakeley v. City of Troy, supra; Goodall v. Crofton, 31 Am. Rep., 535; 33 Ohio, 271.) Even if he had seen the ice there before it would be a fair question for a jury whether he was bound,, under all the circumstances, to remember the fact and avoid that place. If these views are correct, it follows that the judgment should be reversed and a new trial awarded, with costs to abide the event.

Judgment affirmed, with costs.