Weston v. City of Troy

Citation139 N.Y. 281,34 N.E. 780
PartiesWESTON v. CITY OF TROY.
Decision Date03 October 1893
CourtNew York Court of Appeals

OPINION TEXT STARTS HERE

Appeal from supreme court, general term, third department.

Action by Mary Weston against the city of Troy. From a judgment of the general term (20 N. Y. Supp. 269, mem.) affirming a judgment of the special term for plaintiff, defendant appeals. Reversed.

William J. Roche, for appellant.

Charles E. Patterson and Frank J. Parmenter, for respondent.

ANDREWS, C. J.

It is a fundamental principle in the law of this state that in an action for a personal injury, based on negligence of the defendant, the absence of negligence on the part of the plaintiff, contributing to the injury, must be affirmatively shown by the plaintiff, either by direct proof or by circumstances, and that no presumption arises from the happening of an injury and proof of negligence on the part of the defendant that the plaintiff was free from blame. Reynolds v. Railroad Co., 58 N. Y. 248. The plaintiff was injured by falling on a sidewalk in Troy in March, 1885. Her leg was broken, and she recovered a moderate verdict. We think a case of neglect by the city was made out, and we should affirm the judgment of the general term, which sustained the recovery, but for the reason that it would make a precedent for overturning the rule to which we have adverted. The proof shows that the plaintiff was passing over a sidewalk on Madison street, in the forenoon of a clear, cold day in March, adjacent to the saloon of one Foley, and stepped upon a ridge of ice formed by the discharge of water from a conductor on the outside of Foley's building, and that she fell, sustaining the injury complained of. There is no shred of evidece as to the exercise by the plaintiff of any care on the occasion. An inch or two of light snow, which had fallen the night before, covered the ice, thereby rendering it more dangerous. The ridge, according to the plaintiff's witnesses, was formed by the water overflowing from a gutter leading from the house where the water was discharged across the sidewalk to the roadway, and then congealing, the ridge being several inches high and two or three feet wide. The evidence on the part of the plaintiff tends to show that the ridge of ice was plainly visible, and that it formed a dangerous obstruction to the use of the sidewalk was shown by the fact that two other persons had fallen there on the same day the plaintiff fell, and another person two or three weeks before. Wh...

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23 cases
  • Felton v. Midland Continental Railroad, a Railway Corporation
    • United States
    • North Dakota Supreme Court
    • 30 d6 Outubro d6 1915
    ..., 30 S.W. 369; Evans v. Charleston & W. C. R. Co. 108 Ga. 270, 33 S.E. 901; Denver v. Hubbard, 29 Colo. 529, 69 P. 508; Weston v. Troy, 139 N.Y. 281, 34 N.E. 780; Guthrie v. Swan, 5 Okla. 779, 51 P. 562, 3 Am. Rep. 460; Gerdes v. Christopher & S. Architectural Iron & Foundry Co. 124 Mo. 347......
  • Rober v. Northern Pacific Railway Company, a Corporation
    • United States
    • North Dakota Supreme Court
    • 23 d5 Maio d5 1913
    ... ... Pennsylvania & N.Y. Canal & R. Co. 130 N.Y. 632, 28 N.E. 532; Western v ... Troy, 139 N.Y. 281, 34 N.E. 780; Le Barron v. East ... Boston Ferry Co. 11 Allen, 312, 87 Am. Dec ... Wabash, St. L. & P. R ... Co. 88 Mo. 50, 4 Am. Neg. Cas. 569; Yarnell v ... Kansas City, Ft. S. & M. R. Co. 113 Mo. 570, 18 L.R.A ... 599, 21 S.W. 1, 4 Am. Neg. Cas. 714; Bunyon v ... ...
  • Osier v. Consumers' Co.
    • United States
    • Idaho Supreme Court
    • 1 d6 Agosto d6 1925
    ... ... THE CONSUMERS' COMPANY, a Corporation, and the CITY OF COEUR D'ALENE, a Municipal Corporation, Appellants Supreme Court of IdahoAugust 1, 1925 ... 238, ... 62 S.W. 448; Scanlon v. Watertown, 14 A.D. 1, 43 ... N.Y.S. 618; Weston v. Troy, 139 N.Y. 281, 34 N.E ... 780; Garman v. Waverly, 166 Ill.App. 399; Howard ... v. New ... ...
  • Alice Mosheuvel v. District of Columbia
    • United States
    • U.S. Supreme Court
    • 20 d1 Outubro d1 1902
    ...N. E. 1. The case just referred to was approved and followed in Shook v. Cohoes, 108 N. Y. 648, 15 N. E. 531. And also, in Weston v. Troy, 139 N. Y. 281, 34 N. E. 780, it was declared by the court: 'If she [the plaintiff] discovered the ridge, she was not required to leave the sidewalk, but......
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