Opinion
April Term, 1896.
James H. Bain, for the appellant.
Lyman Jenkins, for the respondent.
On the 16th of January, 1895 at about twenty minutes past nine in the evening, the plaintiff, while passing along the sidewalk in front of the residence of one Byrnes on Glen street in the village of Glens Falls, slipped upon an icy surface and fell, receiving injuries for which she seeks in this action to recover damages. She claims that the defendant was negligent in allowing the sidewalk to remain in a slippery condition, and the recovery is on that theory.
The walk was constructed of blue stone and brick, the blue stone being in the central part and five feet wide. Brick was laid between the stone and the line of the lot, a space about two feet wide. There was a stone walk from the sidewalk to the residence of Mr. Byrnes. The lot, except at the gateway, was separated from the sidewalk by a coping about six inches high.
The plaintiff testified that as she passed along the center of the walk, she saw, at the side near the coping, what appeared to her like bare sidewalk, but instead of that it was glare ice, and as soon as she stepped on it she slipped and fell; that she was about two feet from the walk that led to the house of Mr. Byrnes; that she went that way on purpose, because she thought it was bare walk and knew the walking was treacherous; that she could see the red color of the brick through the ice for five or six feet back of where she fell; that there was some snow and ice on the center of the stone walk that she was walking along.
Mr. Clements, a witness for plaintiff, testified that he was walking behind the plaintiff, and that as he went to pass her she slipped and fell; that it was glare ice where she fell; that as he remembered it it had been so at least a week; that children sliding on it called his attention to it, and it was a children's slide; that the slide was directly in front of the entrance to the walk leading to the house, and extended the full width of the opening, and was about ten inches wide. Mr. Mosher, a witness for plaintiff, testified that he knew the condition that the sidewalk was in at the time plaintiff fell and previous; that it was icy, snowing and freezing, and the children were sliding from the house into the street; that the slide had been there he thought a week or ten days, but he was uncertain as to the time, and it extended across the sidewalk into the street; that there was no thaw before that for a week or ten days, "very icy, very rainy, very cold and no thaw."
A table giving the temperature from January first to sixteenth was by consent put in evidence. From this it appeared that on the tenth of January there was a rain fall of one-fourth of an inch; that on the eleventh, twelfth and thirteenth the weather in the middle of the day was some above the freezing point, and on the fourteenth, fifteenth and sixteenth was all the time below the freezing point, except that at one P.M. on the tenth it was two degrees above freezing.
At the place where plaintiff fell it was level and there was no accumulation of snow. It is not shown how thick the ice was. If, as plaintiff testifies, the color of the brick was visible through the ice, it was not very thick. There was an electric light near the walk leading to the residence of Mr. Byrnes.
It is very clear from the evidence that the ice upon the brick on the day of the sixteenth was the result of the rain on the tenth, followed by milder weather on the eleventh, twelfth and thirteenth, and the freezing weather of the fourteenth, fifteenth and sixteenth.
The fact simply that there was ice on the sidewalk, rendering it slippery, did not make the defendant liable. ( Kinney v. City of Troy, 108 N.Y. 567; Kaveny v. City of Troy, Id. 571, 575.) In Taylor v. City of Yonkers ( 105 N.Y. 202) it is said at page 206: "When the streets have been wholly or partially cleaned it often happens that a fall of rain or the melting of adjoining snow is suddenly followed by severe cold, which covers everything with a film or layer of ice, and makes the walks slippery and dangerous. This frozen surface it is practically impossible to remove until a thaw comes, which remedies the evil. The municipality is not negligent for awaiting that result. It may, and should, require householders, when the danger is great, to sprinkle upon the surface ashes, or sand, or the like, as a measure of prudence and precaution, but is not responsible for their omission. It is no more bound to put upon the ice, which it cannot reasonably remove, such foreign material than to cover it with boards. The emergency is one which is common to every street in the village or city, and which the corporation is powerless to combat. Usually it lasts but a few days, and the corporate authorities may await, without negligence, a change of temperature which will remove the danger."
The question is whether the doctrine in the Taylor case does not apply here. There was a thin coating of ice on the brick walk that arose from natural causes, operative in all similar localities. It was shown on the part of the defendant, and not denied by the plaintiff, that, upon the day of the accident or the day before, sand had been sprinkled upon the slippery portion of the walk by the owner of the lot or his hired man.
The counsel for plaintiff cites the case of Keane v. The Village of Waterford (29 N.Y. St. Repr. 340; affd. in 130 N.Y. 188). In that case the fall of the plaintiff was caused by a ridge of snow and ice which extended along the center of the walk, and was five or six inches high. The situation was materially different from the case in hand. There was here no such accumulation of ice and snow. The doctrine of the Taylor case was not criticized. It was approved in Harrington v. City of Buffalo ( 121 N.Y. 147, 151.)
It was argued that, in the present case, the slippery condition was due to artificial causes, in that children were accustomed to slide there. One of the witnesses places the slide from the house to the sidewalk and across it into the street. The other witness places it as going in the other direction along the sidewalk in front of the walk to the house. Evidently the children didn't confine themselves to one spot. We fail to find in this case any such artificial causes as will take the case from the operation of the rule in the Taylor case.
We are of the opinion that the doctrine of the Taylor case is applicable, and that it should be held that the plaintiff did not make out against the defendant a case of negligence. A reversal must follow.
All concurred.
Judgment and order reversed and new trial ordered, with costs to abide the event.