Taylor v. City of Yonkers

• Decision Date: 19 April 1887
• Citation: 105 N.Y. 202,11 N.E. 642
• Parties: TAYLOR v. CITY OF YONKERS.
• Court: New York Court of Appeals Court of Appeals

105 N.Y. 202

11 N.E. 642

TAYLOR

v.CITY OF YONKERS.¹

Court of Appeals of New York.

April 19, 1887.

Joseph F. Daly, for appellant.

John F. Brennan, for respondent.

FINCH, J.

This case was submitted to the jury under instructions that a municipal corporation is bound to keep its sidewalks safe and convenient for the passage of the public, so far as reasonable diligence and the possession of adequate resources will allow; and the application of this rule to conditions resulting from the rigors and changes of a northern winter, and to two emergencies which frequently occur, was very fairly and justly discussed and limited. It often happens that in a single day or night every street and sidewalk in a city or village is covered with a heavy fall of snow. It is not expected, and cannot be required, that the corporation shall itself forthwith employ laborers to clean all the walks, and so accomplish the object by a slow and expensive process, when the result may be effected more swifty and easily by imposing that duty upon the citizens. Each can promptly, and without unreasonable burden, clean the snow from his own premises, and the authorities may justly and lawfully require that to be done under the jurisdiction conferred by their charters. But, though the municipality makes the necessary regulation, it is not thereby relieved from responsibility. The duty remains, and it must therefore see to it that its ordinance is obeyed. It is entitled, however, to a reasonable time within which to perform the duty in the manner permitted, and is not guilty of negligence if, observing that the work is being generally done, it awaits for a reasonable period the action of the citizens. But, when such reasonable time has been given, the corporation must compel the adjoining owners or occupants to act, or do the work itself; and if it suffers the obstruction to remain thereafter, with notice, actual or constructive, of its existence, it may become responsible for injuries resulting. Another and different emergency sometimes occurs, and was referred to in the charge to the jury. When the streets have been wholly or partially cleaned, it often happens that a fall of rain, or the melting of adjoining snow, is suddenly followed by a severe cold, which covers everything with a film or layer of ice, and makes the walks slippery and dangerous. This frozen surface it is practically impossible to remove until a thaw comes which remedies the evil. The municipality is not negligent for awaiting that result. It may and should require householders, when the danger is great, to sprinkle upon the surface ashes or sand or the like as a measure of prudence and precaution, but is not responsible for their omission. It is no more bound to put upon the ice, which it cannot reasonably remove, such foreign material, than to cover it with boards. The emergency is one which is common to every street in the village or city, and which the corporation is powerless to combat. Usually it lasts but a few days, and the corporate authorities may await, without negligence, a change of temperature, which will remove the danger.

Both of these emergencies are shown to have existed in the present case, and as to both the learned trial judge gave to the defendant the full benefit of the rule as we have stated it. But there were further facts. The sidewalk along Buena Vista avenue, where it passed an unoccupied lot, was bounded on its inner line by an unprotected bank of earth. For two years the action of rain and frost had thrown upon the walk sand and gravel and stones from the bank, until the flagging was entirely covered by it, and a new and sloping grade substitutedfor the one adopted. The sand on the inner line was about eight inches in depth, growing less towards the curb, where it was about one inch. Mixed in with this were stones, some of which were as large as apples. When the winter came, this walk was covered with snow, which was never removed. Before the accident, the snow-fall had been heavy, but it was evidently not recent; for upon this walk it had been trampled down by travel, and by freezing and thawing converted into ice. These facts tended to establish negligence on the part of the city. If the slope of the walk was not dangerous in the summer weather, it might become so when coated with ice in the winter, and those having the care of the highway were very blind if they did not foresee the possible danger. No one, however, appears to have been injured by it when simply in this condition, for the reason, probably, that sand was continually washed upon it from the adjoining bank. But this protection disappeared before the plaintiff was injured. On the night preceding, rain fell, which washed the sand from the ice, and then froze, covering everything with a new surface, and making the whole city slippery and dangerous for travel. That was just as true of walks cleaned as of those not cleaned, and it may even be the fact that the latter, when paved, became, by reason of their...