Opinion
April 5, 1917.
Samuel Deutsch, for the appellant.
Edwin A. Jones, for the respondent.
The action was brought to recover damages for personal injuries, the plaintiff having slipped upon the stoop entrance to a tenement, the steps of which were under defendant's control and in defendant's care. During the day in question, as a result of a storm of snow and sleet prior to one o'clock in the afternoon, slush accumulated on the steps. Between three and four o'clock in the afternoon defendant's janitress washed the slush off, pouring out of a pail steaming hot water which soon froze, covering the surface of the steps with a thin glaze of smooth, slippery ice. Plaintiff had left the house at two o'clock and returned at four, when she found that the slush had been washed off, the entire stoop being wet. There were then pools of water on some of the steps and vapor was rising from them. She came out again between five-thirty and six o'clock, at which time the stoop was covered with a thin layer of ice. There was nothing spread or sprinkled over the ice. Plaintiff slipped and fell on the broad step or stoop. This was not one of the steps on which she had noticed the pools of water previously. It did not rain or hail or snow that afternoon, according to plaintiff. There was an abundance of testimony corroborating plaintiff, but the complaint was dismissed upon the ground that no actionable negligence was established.
The claim of negligence is not based upon defendant's having permitted a dangerous condition to exist. It is based upon the affirmative act of the defendant in creating a dangerous condition. This, of course, eliminates the element of notice.
At first blush it seems to be a harsh rule to hold the landlord for an injury growing out of the attempt of the janitress to clear the steps of slush, the very presence of which on the steps created a condition of some danger. But having undertaken to remedy a condition of slight danger, it was incumbent on the defendant not to do it in so negligent a manner as to create a condition much more dangerous. It could readily have been foreseen that the result of pouring hot water on the steps in freezing weather would be to coat or glaze the steps with ice — just what happened. Drawing the inferences, to which the plaintiff is entitled in reviewing the dismissal of her complaint, it appears that the plaintiff, without any fault on her part, was injured by falling on an ice-coated step whose slippery and dangerous condition was directly due to the defendant's act in spilling water upon the stoop. Prima facie, a cause of action was made out and it was error to dismiss the complaint.
No formal exception was noted to the dismissal, and it is contended that there is nothing for the court to review. However, a motion for a new trial upon the minutes, where there is no verdict, can only be made upon exceptions. The trial court entertained such a motion and denied it. The court and counsel both must have assumed, therefore, that the plaintiff's counsel was dissenting from the dismissal and was not passively submitting to it. The making of a motion which could only be based upon an exception was an active dissent from the ruling and expressed the purpose to question and review it. As stated in Snelling v. Yetter, No. 1 ( 25 App. Div. 590, 593): "Hisattitude throughout `indicated exception.' * * * Thus, the plaintiff, according to the general understanding, was, in legal intendment, `excepting' to the ruling which he was led to review." As "an exception is but the formula of dissent from a ruling, expressed with sufficient clearness and definiteness to raise some concrete point upon appeal," I think we must hold that the right of review was not lost because the technical phrase "I except" was not employed.
The judgment and order should be reversed and a new trial ordered, with costs to appellant to abide the event.
CLARKE, P.J., and LAUGHLIN, J., concurred; SCOTT and SMITH, JJ., dissented.
Judgment reversed, new trial ordered, costs to appellant to abide event.