Calkins v. City of Plattsburgh

• Decision Date: 12 July 1960
• Citation: 11 A.D.2d 153,204 N.Y.S.2d 453
• Parties: Walter J. CALKINS, Plaintiff-Respondent, v. CITY OF PLATTSBURGH, New York, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 453

204 N.Y.S.2d 453

11 A.D.2d 153

Walter J. CALKINS, Plaintiff-Respondent, v. CITY OF PLATTSBURGH, New York, Defendant-Appellant.

Supreme Court, Appellate Division, Third Department.

July 12, 1960.

Feinberg, Jerry & Lewis, Plattsburgh (Allen M. Light, Corp. Counsel, Harold A. Jerry, Norman L. Harvey and John T. Snell, Plattsburgh, of counsel), for defendant-appellant.

John P. Judge, Plattsburgh, for plaintiff-respondent.

Before BERGAN, P. J., and COON, GIBSON, HERLIHY and REYNOLDS, JJ.

HERLIHY, Justice.

Defendant appeals from a judgment awarding plaintiff $16,000 for personal injuries incurred when he slipped and fell on a path of snow and ice created by the defendant on one of its streets.

The city, in its process of snow plowing and removal, accumulated large snow piles on each side of Margaret Street, the size and depth thereof apparently being controlled by the snow accumulation during the winter months. The size of the snow banks is graphically demonstrated by the pictures, the receipt of which is one of the main arguments of defendant on this appeal. The city had adopted over a period of years the policy of digging paths through the snow banks to aid motorists in reaching the street and in particular, the parking meters of the city maintained by it for revenue purposes and in operation on the day in question.

With this preview, on February 24, 1958 at about 1:30 in the afternoon, the plaintiff parked his automobile alongside the snow bank and proceeded to walk upon a path leading to the parking meter and sustained the injuries, the nature and extent of which are not in issue on this appeal. The alternative to taking the path was to walk along the snow bank in the road some forty feet to an intersection.

There was considerable testimony as to the amount of snow during the winter and the estimated depths of a storm the previous day. The city showed the customary manner in which snow removal was accomplished, including shoveling paths through the snow banks and various other snow removal problems, all of which, we think, became part of the factual question of negligence on its part.

There was no obligation or duty on the city to construct paths through the snow banks but having done so, Section 143 of the City Charter is no defense. Such Section stated:

'Said city shall not be liable for damages or injury to persons * * * alleged to have arisen or been sustained from or in consequence of a defective or unsafe condition in any sidewalk, street, highway, crosswalk * * * unless actual notice of such defective or unsafe condition shall have been given the superintendent of public works at least five days prior to such injury.'

The conditon here was created by the act of a city agency.

In Annino v. City of Utica, 276 N.Y. 192, 11 N.E.2d 726, which involved a temporary obstruction in the city streets placed there by its employees, 276...