Brennan v. City of New York , 103 N.Y.S. 266 ( 1907 )

Gaynor, J.:

The plaintiff testified that she'slipped on the curb at the corner óf two streets and fell on the cross-walk; that she could not balance and save herself on the cross-walk on the ice and snow there, of which she gives no description. The first of her three witnesses to the accident says he saw her “ slip off the sidewalk,” try to balance herself in the gutter and fall on the- cross-walk; - and that the -sidewalk and cross-walk were “icy,” had “trodden down snow” on them, “ packed snow ” about. “ an inch or two thick,” and that she fell thereon. The next says substantially the same as to the place and manner of her slip and fall; and he describes the' cross-walk only as having trodden snow on it, “ and the cold weather froze it right over, formed ice.” The last saw the plaintiff as she fell on the cross-walk two feet, in front of him on what he finally calls “ frozen snow.” He says nothing of -her slipping from the curN

No' one but ■ the first witness says there was packed or frozen snow or ice on the sidewalk. The complaint only alleges they were on the cross-walk, and the pase was tried on that basis. The accident happened at about half after 8 o?clock Tuesday ' evening, February 16th. The official weather report showed that it had snowed from 8 :12 a. m." to 8 : 28 a. m. and from 10:45 a. m. to 2:13-p. m. oil Sunday,, and from 7:14 p. m. Sunday to 3 a. m. Monday. On Monday the temperature ranged from 34 to 24, and on Tuesday from 12 to 1, above zero.

The evidence was insufficient to go. to the jury. In the first place, the proximate cause of the plaintiff’s fall was her slip on the sidewalk, .of which no allegation of negligence is made. She might have fallen if there had been no snow on the cross-walk. To .say she. would not would.be speculation. In the. next place, there was no defect or obstruction on the cross-walk, within the meaning of those terms. There was nothing there other than the natural temporary condition caused by the weather for the time being. With the constant alternations from rain to snow, from thawing to freezing, in this trying climate of ours in the winter, such a condition of the streets of a city is inevitable and not chargeable to the city. Cities have 'a duty to keep the streets free of dangerous defects and obstructions, but such condition is neither.

Evidence was given for the defence showing that the city’s street force had worked diligently after the snowfall to remove the snow from the streets, including the locality where the plaintiff fell. The learned trial judge refused to charge as requested by the learned counsel for the city that if such employes did all they could after Sunday to clear the street where the accident happened of snow the verdict must be for the city. The exception to such refusal was well taken; otherwise the city is liable, however diligent. But with several hundred miles of streets to take care of, a city cannot clear them of every fall of snow or covering of ice, nor is it required to try to, for if it snow or freeze to-day it will rain or thaw to-morrow or soon, and the city may await that event,. (Taylor v. City of Yonkers, 105 N. Y. 202.) There is reason in all things. To employ men enough to keep the streets free at all times of snow and ice would be an expenso that cities could not bear, and they are not required to. The question exists only in such climates as we have here. After snow storms the city cannot be expected to do more than open the streets to travel; they cannot clean them of all snow or water, and prevent them from being more or less slippery. ISlor could snow and slush be kept off the cross-walks unless the entire street were cleared of them; every passing horse and vehicle" would spread them there. Indeed, in order to-use sleighs, as is the case in many cities, the snow is and has to be left on the cross-walks.

The accumulation of snow and ice at a particular spot by regular accretions for a considerable length of time 'until it becqmes an obstruction, dangerous to passers-by, is very different to the present case.

The judgment and order should be reversed.

Hieschberg, P. J., Rich and Miller, JJ., concurred; Woodward, J., read for affirmative.