Durr v. Village of Green Island , 71 Hun 260 ( 1893 )

MAYHAM, P. J.

The plaintiff brought this action for an alleged injury resulting to him from a fall on the sidewalk in the village of defendant, which fall plaintiff alleged he suffered by reason of the defendant’s negligence in suffering ice to accumulate thereon. The evidence shows that during a portion of the month of November, and down to the last of that month, snow and ice had accumulated on the sidewalk on Pine street, in that village, and had not been removed by the village authorities, and that the same was about six inches in depth at that time, and that, by reason of pedestrians passing over it, it had, at times, when the temperature was high, become soft, and marked by footprints, so as to present a rough and uneven surface, and in that condition had frozen. Upon the 1st or 2d of December, following, there was a precipitation of snow and sleet, covering the entire surface of the sidewalk, and rendering the sidewalks in the village of Green Island, generally, slippery. From that time until the 4th of December the temperature had been constantly below freezing point, ranging from 19 degrees down to 8 degrees above zero. On the night of the 4th of December the plaintiff, while passing along and over the sidewalk on Pine street, stumbled or slipped from the icy portion of the sidewalk, and fell, and was seriously injured. For this injury he brings this action. On the trial the plaintiff was nonsuited, on the ground that it was apparent from the evidence that the injury resulted from one of two causes, for one of which the defendant would be liable, and for the other the defendant would be exempt from liability. We think the learned judge was right in his determination, and that his decision must be upheld. Upon the evidence, it is, we should think, clear that the village of Green Island was negligent in allowing snow and ice to accumulate upon the sidewalk, as the evidence showed it to have done, without any effort on the part of the defendant to remove it during the month of November. The testimony discloses that the temperature was sufficiently mild to soften the ice and snow on the sidewalk during that month, and thus rendering it reasonably possible for the village to have removed the accumulation; and, if this action had been prosecuted for injuries occurring before the precipitation of snow and sleet on the 2d of December, it is quite probable that legal negligence might have been established against the defendant, which would authorize a recovery. But the precipitation of sleet and snow on the 1st and 2d of December, followed by a severe freezing condition of temperature, and producing a general icy and slippery condition of the sidewalks of the entire village, makes it uncertain whether the injury resulted from this latter condition, or from the condition existing ■on the last of November. If the icy condition produced by the sleet and snow on the 1st and 2d of December produced the injury, then, clearly, within the decision of Taylor v. City of Yonkers, 105 N. Y. 208, 209, 11 N. E. Rep. 642, there would have existed two causes, for one of which the defendant would be liable, and for the other of which it would not be liable, and the jury could not properly be permitted to speculate as to which of the two causes produced the injury. In such a case "the plaintiff must fail, if his evidence does not show that the damage was produced by the former cause.” Searles v. Railroad Co., 101 N. Y. 661, 5 N. E. Rep. 66. This the plaintiff did not show by his evidence. The judge was therefore right in refusing to allow the jury to speculate as to which of the two alleged causes produced the injury. Taylor v. City of Yonkers, supra; Kaveny v. City of Troy, 108 N. Y. 576, 577, 15 N. E. Rep. 726; Tobey v. City of Hudson, (Sup.) 2 N. Y. Supp. 180. We think, within these authorities, the plaintiff failed to establish negligence on the part of the defendant, for which it can be held liable, and that the judgment should be affirmed. Judgment affirmed, with costs. All concur.