Lichtenstein v. Mayor of New York

McLaughlin, J.:

On the 8th of March, 1893, the plaintiff, in attempting to pass over the crosswalk on Second avenue, extending from the southeast to the northeast corner of Seventy-ninth street, in the city of New York, fell and fractured the fibula of her right leg. She brought this action to recover damages for the injury upon the ground that the same was caused by the negligence of the defendant.

Hpon the trial, evidence was offered tending to show that on either side of the crosswalk referred to there was, at the time of the accident, an accumulation of ice and snow, with a rough uneven surface from one to three feet in thickness; that this obstruction in the street was created by the city depositing the snow and ice which it removed from the crosswalk; that water several inches in depth had been permitted to accumulate and remain upon the crosswalk ; that the plaintiff, in order to avoid stepping in the water, stepped upon the accumulation of ice and snow at one side of the walk when she slipped, fell and sustained the injury referred to. It also appeared that the street, including the crosswalk, had for upwards of four weeks prior to the accident been in substantially the same condition that it was on that day, and that during that time several persons had slipped and fallen upon the same crossing.

With evidence tending to establish such facts, we think the defendant’s negligence was a question to be submitted to the jury. It was the duty of the city to keep its streets, including crosswalks, in a reasonably safe condition for public travel. Did it perform that duty ? The jury, by the verdict, found that it did not, and the evidence sustains the finding.

The plaintiff had a right to use this street, including the crosswalk, although she knew its condition. (Bullock v. The Mayor, 99 N. Y. 654.) She could not be charged, as a matter of law, with contributory negligence because she sought to avoid the water which the city had permitted to accumulate upon the crosswalk, and whether her negligence contributed to the injury was, we think, also a question for the jury. The jury found upon evidence which warranted the finding that the plaintiff was free from negligence, and that her injury was caused solely by the negligence of the defendant. We see no reason for interfering with the finding.

It follows that the judgment must be affirmed, with costs.

Barrett and Rumsey, JJ., concurred; Van Brunt, P. J., and Ingraham, J., dissented.