16 Daly (N.Y.) 58

Thomas O’Connor, Respondent, against The Mayor, Aldermen and Commonalty of the City of New York, Appellant.

(Decided February 10th, 1890.)

A period of less than forty-eight hours between the time of a snow fall and an accident due to a slippery street is not sufficient to charge the city with negligence in not causing the street to be cleared.

Appeal from a judgment of this court entered upon the - verdict of a jury and from an order denying a motion for a new trial.

*59The action was brought to recover for injuries to' plaintiff caused by slipping and falling on an accumulation of snow and ice on a sidewalk on one of defendant’s streets. The jury rendered a verdict for plaintiff for $500. A motion by defendant for a new trial was denied, and judgment for plaintiff was entered on the verdict. From the judgment and the order denying the motion for a new trial defendant appeals.

JEdward H. HawJce, Jr., for appellant.

Louis J. Grant, for respondent.

Larremore, Ch. J.

The learned trial judge stated in his charge to the jury certain of the conceded facts in this case as follows: “ It appears that Mrs. O’Connor fell on this ice or hard snow on the corner of Carlisle and Greenwich Streets. It appears that for ten or twelve days before the 25th of January there had been no considerable snow storm; in fact, as the sergeant of the signal service said, there had been only two small flurries of snow. Then on the 25th there was a snow-fall, and then it changed to rain, and then there was snow and rain, and these followed by sleet, and about half past two on the morning of the 26th of January the storm ceased. Then the temperature fell very low from that time forward down until the time of the accident, and afterwards the temperature was never above Jhe freezing point; it was always down below, and never above the freezing point. Well, the 26th passed and the 27th came, and on the evening of the 27th about seven o’clock she fell.”

The doctrine has been established by a number of recent cases that, while the obligation to keep the sidewalks reasonably free from snow and ice rests upon a municipal corporation, it shall nevertheless be allowed a reasonable time for the performance of such duty (Taylor v. City of Yonkers, 105 N. Y. 202; Kinney v. City of Troy, 108 N. Y. 567 ; Kaveny v. City of Troy, 108 N. Y. 571). Where the facts are *60uncontradicted the question as to what constitutes a reasonable time is a question of law to be decided by the court ( Wright v. Bank of the Metropolis, 110 N. Y. 237; Colt v. Owens, 90 N. Y. 368; Hedges v. H. R. R. Co., 49 N. Y. 223).

The facts here were so clearly uncontradicted that the trial judge stated them to the jury in his charge. Such facts bring the case at bar clearly within the ‘authorities above cited. The period between the snow-fall and the accident was less than forty-eight hours, and we think, as matter of law, that a reasonable time had not elapsed either to presumptively charge the defendant with negligence in not causing the walk to be cleared, or to charge it with constructive notice that the walk was slippery and dangerous. It follows that there was not sufficient evidence to support the verdict. There was really no more to go to the jury in this case than in Kinney v. City of Troy (supra), and the complaint should have been dismissed.

The judgment appealed from should be reversed and a new trial ordered, with costs to appellant to abide the event.

Bookstaver and Bischoee, JJ., concurred.

Judgment reversed and new trial ordered, with costs to appellant to abide event.

A motion for a re-argument was made at the succeeding General Term, and the following opinion was rendered thereon, April 7th, 1890.

Bischoff, J.—Counsel for respondent assumes that the” opinion of the January General Term herein directing a reversal of the judgment appealed from was predicated upon defendant’s want of notice, actual or constructive, prior to the happening of the accident complained of, that the sidewalk was in a dangerous condition, and that the court inadvertently overlooked the testimony of the defendant’s police officer who admitted upon the trial that the condition of the sidewalk was known to him some time before ¿he accident. No other ground for re-argument is assigned.

*61A careful examination of the opinion referred to must be convincing that the reversal was directed upon the grounds that a municipal corporation is not chargeable with neglect in permitting its streets to be in a dangerous condition, in the absence of proof that there was reasonable time to render such streets safe; that the question whether or not there was such reasonable time is a question of law to be determined by the court; that the uncontradicted facts in the present case, showing an interval of less than 48 hours between the cessation of the snow-fall and the time of the accident, failed to show that defendant had a reasonable time within which to remove the accumulated ice and snow or otherwise to render the sidewalk in safe condition; that because of the want of such reasonable time the plaintiff had failed to establish negligence on the part of defendant and that it was error for the trial judge to submit the question of defendant’s negligence to the jury.

This view renders the question of notice of no importance in this case, for if it be conceded that defendant had actual notice of the dangerous accumulation of ice and snow on the sidewalk in question, defendant must nevertheless be held absolved'from the imputation of negligence if there was no reasonable opportunity to remove the danger between the time of its first appearance and the happening of the accident.

The motion for re-argument must be denied, with costs.

Larremore, Ch. J., concurred.

Motion denied, with costs.

O’Connor v. Mayor of New York
16 Daly (N.Y.) 58

Case Details

O’Connor v. Mayor of New York
Decision Date
Feb 10, 1890

16 Daly (N.Y.) 58

New York



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