Collins v. City of New York ( 1918 )

Per Curiam :

We think the notice of claim served upon the city in this case was sufficiently definite. (Beyer v. City of North Tonawanda, 183 N. Y. 338.) While the point where deceased was found was not at the exact intersection of the easterly side of Franklin avenue with the southerly side of Crown street, still it was upon the Crown street side of the corner building and this sidewalk was sufficiently identified in the notice. The evidence introduced by plaintiff as to accumulations of uneven ice upon the sidewalk, and as to the time during which such conditions prevailed, was, in our opinion, sufficient to require submission of the question of reasonable safety, and negligence on the part of defendant in that regard, to the jury. But we are constrained to reverse the judgment for the reason that there is no sufficient evidence that these conditions were the proximate cause of the injuries which caused the death of plaintiff’s intestate. This was one of the grounds urged by defendant on its motion for nonsuit. Deceased was seen about seven o’clock in the evening alighting from a south-bound Franklin avenue car at Crown street, and walking diagonally in a southeasterly direction, across Franklin avenue and Crown street in the general direction of the point where he was discovered about half-past seven, sitting or lying on the southerly side of Crown street on the flagged walk and in the space between the flagged walk and the curb. There was no evidence as to where his feet were, or in what direction his body lay. There is no evidence as to how he came to be in the position in which he was found — whether he fell,' or tripped on the curb, or slipped on the ice, or as to where he fell or slipped or tripped. There is nothing to show that he did not move or change his position after his mishap. The roadway of Crown street was covered with ice, the weather was very cold and a very high wind was blowing at the time. While in cases resulting in death with no witnesses to the happening of the accident, the courts have permitted inferences which unavoidably flow from conditions discovered afterwards, there is no case which goes to the extent of holding that a verdict for plaintiff may be sustained when the proof is such that it is equally probable that the accident might have happened from some cause for which the defendant was not responsible. (Ruppert v. Brooklyn Heights R. R. Co., 154 N. Y. 90; Jones v. Ryan, 125 App. Div. 282; Moscato v. Prince Line, Limited, 164 id. 412.)

The judgment and order should be reversed and a new trial granted, with costs to appellant to abide the event.

Jbnks, P. J., Mills, Rich, Putnam and Kelly, JJ., concurred.

Judgment and order reversed and new trial granted with costs to appellant to abide the event.