Williams v. City of New York

• Decision Date: 25 February 1915
• Parties: WILLIAMS v. CITY OF NEW YORK.
• Court: New York Court of Appeals Court of Appeals

214 N.Y. 259

108 N.E. 448

WILLIAMS

v.CITY OF NEW YORK.

Court of Appeals of New York.

Feb. 25, 1915.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Charles Williams against the City of New York. From a judgment of the Appellate Division (160 App. Div. 931,145 N. Y. Supp. 1150), affirming a judgment upon a nonsuit in favor of defendant, plaintiff, by permission, appeals. Reversed, and new trial granted.

See, also, 162 App. Div. 900,146 N. Y. Supp. 1118.

Cuddeback, J., dissenting.

Ralph G. Barclay, of Brooklyn, for appellant.

Frank L. Polk, Corp. Counsel, of New York City (Terence Farley, of New York City, of counsel), for respondent.

WILLARD BARTLETT, C. J.

This is a snow and ice case against the city of New York, but not one of the usual insignificant character. Permission to appeal was granted on account of the difference, which has developed for some years past, between the treatment accorded to this class of cases in the First Department and that which they have received in the Second. In the First Department there has been manifested a strong tendency to nonsuit in many actions which would almost certainly go to the jury if they had been brought in the Second Department. It was thought that this variance of view might be harmonized by a restatement on the present appeal of the rules which should control the determination of cases of this character.

[1][2] The accident occurred on January 20, 1912. The plaintiff slipped on a snowy and icy sidewalk and broke his leg. The sidewalk was adjacent to a vacant block on St. Ann's avenue, between 138th and 139th streets. It was all covered with snow and hard ice, packed down and about two inches thick. The snow and ice had been there during five or six days before the accident. The last snowstorm previous thereto occurred five or six days before, and was quite a heavy one. None of the snow was removed after that snowstorm and before the accident. The condition of the ice was rough where people had packed down the snow, and ice had formed on top of it. There had been flurries of snow and rain—little flurries—about two days before the accident.

The jury would have been warranted in finding the facts as above stated. These facts show prima facie: (1) A dangerous and unusual condition of the street; and (2) the lapse of sufficient time to charge the city with constructive notice of that condition.

The nonsuit is sought to be sustained by several suggestions which we regard as untenable. No express or specific evidence was given as to the character of the weather which prevailed throughout the period between the snowstorm and the accident; and it is argued that the flurries of rain and snow which occurred two days before may have occasioned the formation of the ice upon which the plaintiff slipped, and two days would not be long enough to charge the city with constructive notice. It is to be observed, however, that the witness who mentioned these flurries characterized them as ‘little,’ and the suggested inference that the formation of the dangerous ice was due in some way to the warmer temperature which probably accompanied them should not be allowed to prevail against the explicit testimony of the same witness to the effect that the condition of the sidewalk as to snow and ice ‘was the same’ from the time of the snowstorm, five or six days before, to the time of the accident.

[3] Another suggestion in behalf of the respondent is that in snow and ice cases the rule should be analogous to that which prevails in the case of defective sidewalks, namely, that the law will not take into account a slight thickness of ice any more than it will predicate liability upon the existence of a slight inequality in the sidewalk, say four inches. The conditions are too dissimilar to warrant any such analogy. A surface of rough ice two inches thick may be as perilous to the wayfarer as if it were a foot in thickness.

[4] Another point urged against the plaintiff grows out of his conduct on the occasion of the accident. He had slipped down on the sidewalk just before he fell the second time and broke his leg. He pursued his way along the icy sidewalk instead of crossing the street to a sidewalk which was entirely clear. This, it is said, was contributory negligence, not merely justifying, but requiring, the nonsuit. It may have been contributory negligence as matter of fact, but we think it was a question for the jury. In Twogood v. Mayor, etc., of N. Y., 102 N. Y. 216, 6 N. E. 275, it was held to be a question for the jury whether a plaintiff was chargeable with contributory negligence in venturing upon a walk in an icy condition when she might have avoided all danger by going upon the walk on the other side of the street which was clear and safe.

[5] In order to render a municipality liable in this class of cases the interference with travel must be: (1) Dangerous; (2) unusual or exceptional; that is to say, different in character from conditions ordinarily and generally brought about by the winter weater prevalent in the given locality. This statement of the rule finds support in the principal decisions in this court in snow and ice cases.

To render a municipality liable for an injury caused by the presence of snow and ice in the streets, it must constitute an unusual or dangerous obstruction to travel. Harrington v. City of Buffalo, 121 N. Y. 147, 150,24 N. E. 186, 187. ‘The danger arising from the slipperiness of ice or snow lying in the streets,’ said Ruger, Ch. J., in the case cited, ‘is one which is familiar to everybody residing in our climate, and which every one is exposed to who has occasion to traverse the streets of cities and villages in the winter season.’ Nevertheless, the duty which the law imposes upon a municipal corporation to keep its streets in a suitable condition for public travel obligates its agents charged with that duty to exercise vigilance in the performance thereof; and this extends to the removal of dangerous and excetpional accumulations of snow and ice as well as other obstructions to travel. Todd v. City of Troy, 61 N. Y. 506. In the case cited a conducting pipe discharged water upon the sidewalk over which the water ran into the street gutter. This water would alternately freeze and thaw according to the temperature, and for some days before the accident there was ice upon the sidewalk extending clear across the same, but concealed by a slight covering of recently fallen snow. The city of Troy was held liable for an injury sustained by the plaintiff in slipping upon this concealed ice. In Evans v. City of Utica, 69 N. Y. 166, 167 (25 Am. Rep. 165), the obstruction for the existence of which the defendant was held liable consisted of snow which——

‘had been suffered to accumulate for a month or more, and had thawed and frozen until ice had formed from four to six inches thick, with an uneven surface.’

In Urquhart v. City of Ogdensburg, 91 N. Y. 67, 43 Am. Rep. 91, note, the ngeligence of the municipality was predicated upon an accumulation of ice upon a sloping sidewalk. In Allison v. Village of Middletown, 101 N. Y. 667, 5 N. E. 334, the village was charged with negligence for having allowed ice formed from the wastage of a pump and the discharge from a...