Lichtenstein v. Mayor, Aldermen, And Commonalty of New York

• Decision Date: 13 June 1899
• Citation: 159 N.Y. 500,54 N.E. 67
• Parties: LICHTENSTEIN v. MAYOR, ALDERMEN, AND COMMONALTY OF CITY OF NEW YORK.
• Court: New York Court of Appeals Court of Appeals

159 N.Y. 500

54 N.E. 67

LICHTENSTEIN

v.MAYOR, ALDERMEN, AND COMMONALTY OF CITY OF NEW YORK.

Court of Appeals of New York.

June 13, 1899.

Appeal from supreme court, appellate division, First department.

Action by Lottie Lichtenstein against the mayor, aldermen, and commonalty of the city of New York. From a judgment of the appellate division affirming a judgment for plaintiff (51 N. Y. Supp. 642), defendant appeals. Reversed.

Martin, Bartlett, and Vann, JJ., dissenting.

John Whalen and Theodore Connoly, for appellant.

George Hahn, for respondent.

O'BRIEN, J.

The plaintiff recovered a verdict of $2,000 for a personal injury sustained while crossing Seventy-Ninth street, in the city of New York, on the 8th day of March, 1893. There is no dispute about the main facts upon which the action is based. It appears that the plaintiff, while crossing from one side of the street to the other, upon a crosswalk, slipped and fell, sustaining what is called a ‘Pott's fracture’ of the leg. It is not claimed that the crosswalk itself was out of order, but it appears that considerable snow had fallen during the winter, and some six or seven inches within three or four days prior to the accident. The snow had been shoveled from the crosswalk, and thrown on each side of it into the bed of the street, and, having been packed, formed what are called ‘ridges' or ‘banks' on each side of the crossing. These ridges had become hard by thawing and freezing, and were from one to three feet high. The day of the accident was mild, and the ice and snow melted rapidly, and the water from the melting snow and ice collected on the crosswalk between the ridges, forming a pool deep enough to wet the feet when walking on the crossing. In this condition of the street the plaintiff was crossing upon the crosswalk, and, coming to the water, attempted to avoid it by stepping onto one of the ridges, when in some way she slipped, and, turning the ankle, sustained the fracture already described.

This case does not involve the liability of the city for allowing ice or snow to accumulate on a sidewalk or a crosswalk, but for allowing it to accumulate in the bed of the street. The crosswalk over which the plaintiff was passing had been shoveled and swept, so that the snow was completely removed, but in doing that ridges had been created on each side. The accumulation of snow and ice in the bed of the street left the crossing lower than the roadway on each side, and the water from the melting snow and ice naturally accumulated there. If the passenger followed the crossing, the water was a disagreeable, though not a dangerous, obstacle. If she left the crossing and took the bed of the street, the melting snow or ice confronted her. In keeping the sidewalks and crosswalks free from snow or ice, the city authorities must either throw it into the bed of the street or cart it away. In this case they did not draw it away, but threw it into the street on each side of the walk; and, the roadway having in this manner been raised above the crosswalk, the result was the accumulation of water which the plaintiff sought to avoid by stepping on the ridges in the roadway. The question presented by this appeal is whether the city can be made liable for the result of such an accident. It seems to me that it cannot, unless we are prepared to hold that it is the duty of the city to use reasonable care and diligence in removing the snow and ice, not only from the walks, but from the roadbed as well. If it is bound to cart away all the snow that may fall within the limits of the street, within a reasonable time, and not allow any ice or snow to accumulate either on the walks or on the roadway, then it may be that there was a question in this case for the jury; but, if no such duty is imposed upon the city authorities, it is difficult to state any principle or reason upon which this judgment can be upheld. It is scarcely necessary to say that, in the varying and uncertain winter climate of this state, such a measure of diligence on the part of the city authorities would be unreasonable, since it would be impossible to comply with it. The accumulation of ice and snow in the streets of great cities is no doubt a very great inconvenience, but to hold the city liable for the result of every accident arising from such a condition would carry the rule of responsibility beyond all reasonable limits. The city would practically become an insurer of the individual against all injuries and mishaps in such times. Thus far the liability of a city for accidents caused by slipping on snow or ice has been limited to cases where the obstacle was on the walks generally used by foot passengers. In order to sustain this judgment we must make a very great and important advance, and hold that the defendant was not only bound to keep the walks clear of snow and ice, but the roadway also, or at least that part of it that is so near the walks that a passenger may step upon it when seeking to avoid a pool of water. The contention of the learned counsel for the plaintiff, while not expressed exactly in these words, leads logically to this conclusion. The only negligence that can be imputed to the city is that it failed to remove from the bed of the street the ridges of snow upon which the plaintiff stepped when injured. There is no such duty imposed by the law, in my opinion, upon the authorities of cities. Such a rule of responsibility would be so unreasonable and oppressive that it need not be considered in discussing questions of liability for accidents of this character. The storms of winter in this climate produce conditions on the streets of great cities favorable to the occurrence of such accidents. The individual cannot be insured against all dangers from the elements in the city, any more than in the country; and, when an injury of this kind is caused by an accumulation of ice or snow in the bed of the street, it is simply an accident, for the results of which no one is responsible.

The liability of the city for damages in a case of this character may always be tested by the inquiry whether the accident could fairly or reasonably have been anticipated by the authorities and guarded against. Could any reasonably prudent or careful man have foreseen or anticipated what happened to the plaintiff while crossing the street in question? If not, then the city is not, and ought not to be, liable. Assuming, as we must, that the city is not chargeable with negligence for omitting to cart away the snow from the roadway, there is no proof of any other defect; and hence there is nothing left for the judgment to rest upon, unless it be claimed that the particular place where it was deposited, with reference to the crosswalk, was improper. The walk to the full width and beyond was cleared so as to make a safe and convenient crossing, but for the accumulation of water caused by the melting of snow and ice on a mild day. It cannot be...