Erb v. City of New York (122 A.D. 915, 1907)

No opinion (Dissenting opinion by Ingraham, J.). Present — Patterson, P. J., Ingraham, McLaughlin, Clarke and Houghton, JJ.

Ingraham, J. (dissenting):

I do not concur in the affirmance of this judgment, as I think that the evidence failed to show that the defendant was negligent in failing to prevent the sidewalk upon which the plaintiff fell from becoming slippery. The accident happened on the morning of the 16th of December, 1902, between nine and ten o’clock. It appeared that in that year there was a fall of snow on December fifth of about one and one-lialf inches; that on December seventh it rained; on December eleventh and twelfth it rained with a freezing temperature, so that one and one-eighth inches of ice formed upon the streets; that on the thirteenth the rain continued until twelve p. m., after which six inches of snow fell; that on the fifteenth it commenced raining at ten o’clock at night and continued through the sixteenth; that frost commenced on the fifth of December and continued until the fifteenth, when the temperature rose to forty-three degrees and rain commenced which continued through the sixteenth; during all of the sixteenth the temperature was considerably alpove freezing. The plaintiff testified that she passed those premises six times every day and was familiar with the conditions, and that it had been slippery there for some two weeks prior to the accident. The defendant was not responsible for the formation of ice on this sidewalk resulting from the falling of snow and rain and the freezing weather, as it is quite evident that it would be an-absolute impossibility for the city during the winter months in this latitude, with the alternation of rain, snow and frost, to keep the 1,158 miles of sidewalk with an area of 27,000,000 square yards in the city of New York free from ice, especially in those parts of the city not entirely built up and in front of vacant property of this kind. The snow that fell on the thirteenth" and fourteenth would acccount for the fact that in front of this vacant lot there was more or less packed snow upon the sidewalk which would necessarily make the sidewalk slippery, and with the heavy rain on the night of the fifteenth and the morning of the sixteenth, with a temperature considerably above freezing, the result would necessarily be a slippery sidewalk, for which, certainly, the city-was not responsible. (Taylor v. City of Yonkers, 105 N. Y. 202; Crawford v. City of New York, 68 App. Div. 107; affd., 174 N. Y. 518; Foley v. City of New York. 95 App. Div. 374.) The plaintiff testified that “there was ice and snow which had accumulated on this walk for several days, I should say about two weeks,' and then there was a flow of water that went over the lot and went across, diagonally across the walk; across the sidewalk, which was flowing very heavily that morning, and I was very cautious to keep down -my umbrella and use my umbrella as a cane, and when I came to this spot I fell, and my arm went in back' of me; * * * the snow and ice that had accumulated on the walk caused me to fall; I could not see it through the water; I could not see whether it was lumpy or whether it was smooth.” Thus the plaintiff expressly testified that it was the snow and ice upon the sidewalk, for which the city of New York was not responsible; that caused her to'fall. The fact that there was water on the sidewalk flowing across it from the adjoining lot- was not the proximate cause of-the accident, and so far as I can see had nothing to do with the plaintiff’s slipping. She does not say that she did not see the water running across the sidewalk; she does say that ice and snow were on the sidewalk and.had been for several days prior to the accident, and the presumption is certainly justified that the ice and snow upon which plaintiff fell were caused by the snow storm two or three days before the accident. It seems to me that the whole case negatives the inference that the water which had been allowed to flow from this vacant lot to the street over the sidewalk had anything to do with the accident, or that any negligence of the city in not preventing this flow of water would impose any liability upon it for this accident. I think, therefore, this judgment should be reversed.