Opinion
Argued April 26, 1916
Decided May 9, 1916
Lamar Hardy, Corporation Counsel ( Edward A. Freshman and Thomas F. Magner of counsel), for appellant.
Henry M. Dater, Jay S. Jones and Edward J. Fanning for respondent.
This is an action to recover damages for personal injuries. The plaintiff claims to have suffered the injuries complained of by reason of having slipped upon ice on the sidewalk in the borough of Brooklyn in the city of New York. The evidence offered on behalf of the plaintiff was not sufficient to carry the case to the jury. The accident happened on January 4, 1912. A witness called on behalf of the plaintiff testified that on December 27th or 28th, there was a "little bluster of snow." It appears that this fall of snow was followed by rain and that there was slush on the sidewalk which, by reason of travelers walking over it, became uneven. The temperature between the day of the snow fall and the day of the accident was variable. The snow and slush on the sidewalk prior to the day before the accident had not become frozen and did not present any unusual or dangerous obstruction to travel. The day before the accident and on the day of the accident there was a fall in temperature and the uneven snow and slush on the sidewalk became frozen. This evidence falls short of establishing such an unusual and exceptional condition as is necessary to charge a municipality with negligence in cases of this character. ( Williams v. City of New York, 214 N.Y. 259, 264.) Upon this evidence the jury would not have been justified in concluding that the condition existing at the time and place of the accident was so different in character from the condition ordinarily and generally existing during the winter season, as to charge the municipality with negligence for failure to remove the slush from the sidewalk. This case differs from the Williams Case ( supra) and falls within the principle of Harrington v. City of Buffalo ( 121 N.Y. 147, 150), which was commented upon and quoted from in the opinion in the Williams Case ( supra). The recent opinion in this court in the Williams Case ( supra) makes it clear that there can be no liability on the part of a municipality in cases of this character, unless a dangerous and unusual condition of the street is shown, and the lapse of sufficient time to charge the municipality with constructive notice of that condition. The condition shown to exist in this case was not unusual or exceptional. On the contrary, the condition that did exist was such as was naturally to be expected during the winter season in our climate. The law does not impose responsibility for such a condition upon a municipality. It follows that the judgment appealed from should be reversed and the judgment of the Trial Term dismissing the complaint affirmed, with costs.
WILLARD BARTLETT, Ch. J., HISCOCK, CHASE, COLLIN, HOGAN and CARDOZO, JJ., concur.
Judgment reversed, etc.