Schneider v. City of New York

McLaughlin, J. : About eight o’clock in the morning of the 7th of February, 1908, the plaintiff sustained a personal injury by slipping on the snow and- ice on the sidewalk on Park avenue, between One Hundred and Sixty-fifth and One Hundred and Sixty-sixth streets, in the city of Hew York. She brought this action to recover the damages sustained on the theory that the city was responsible because it had permitted the snow and ice to accumulate upon the walk. The jury rendered a verdict in her favor for a substantial sum, and from the judgment entered thereon and an order denying a motion for a new trial the city appeals. There is no doubt, as a general proposition, that a municipal [217] corporation is liable to persons who, without negligence on their part, sustain injury by reason of its not removing obstructions from the sidewalk, including snow and ice. But the liability in this respect is qualified, at least to the extent of not requiring such corporations to do what is practically impossible. The defendant cannot prevent snow falling or ice forming. Neither can it, with its hundreds of miles of sidewalk, in this latitude, with the frequent and varying changes of temperature, immediately remove the same. It has a reasonable time within which to do so. The accident occurred, as indicated, about eight o’clock in the morning of the seventh of February. For several days immediately preceding, snow had fallen and the temperature had been below the freezing point, except a short time on the sixth, when it rained. The plaintiff’s witness Scarr, who had charge of the United States Weather Bureau in the city of New York, testified — and his testimony was uncontradicted — that it commenced to storm at four minutes past three p. m. on the fifth and continued until five minutes after two a. m. on the sixth; that the total fall of snow on the fifth was four inches, and on the sixth, one and seven-tenths inches; that it also snowed on the first of February, when one and eight-tenths inches fell;"there was also a slight.fall on the second and third; that the temperature on the first ranged between forty-seven and twenty-one degrees; on the second between twenty-six and fourteen degrees; on the third between twenty-seven and thirteen degrees; on the fourth, between nineteen and four degrees; on the fifth, between thirty-one and one degrees; on the sixth, between thirty-eight- and twenty-nine degrees, and on the seventh, between twenty-nine and twenty-two degrees. The same witness also testified that there were several snowfalls between the twenty-third and thirtieth of January. A report of the New York Meteorological Observatory of the Department of Parks was put in evidence, which showed that the storm on the fifth and sixth lasted twelve hours and thirty minutes, and during that time eight inches of snow fell. It also appeared that during the rain on the sixth the temperature dropped below the freezing point and so continued until after the plaintiff was injured. It is true the plaintiff stated that she slipped upon old ice, but in this she was clearly mistaken, because it is perfectly obvious, [218] inasmuch as the snow that fell on the fifth and sixth and the ice which formed during that time had not been removed, it was upon that that she slipped. Scarcely twenty-four hours had elapsed since that snow , and ice had accumulated upon the walk. To hold that the city is responsible for not removing the same during that time would be, in effect, to require it to do what is physically impossible. The temperature was below the freezing point, and it had a right to wait, certainly a reasonable time, for it to moderate. (Taylor v. City of Yonkers, 105 N. Y. 202; Crawford v. City of Few York, 68 App. Div. 107; affd., 174 N. Y. 518; Foley v. City of Few York, 95 App. Div. 374; Brennan v. City of New York, 130 id. 267; affd., 197 N. Y. 544.) Under these authorities and many others that might be cited to the same effect, I am of the opinion that a verdict should have been directed for the defendant. The- judgment and order appealed from, therefore, are reversed and a new trial ordered, with costs to appellant to abide the event. Clarke, Scott and Dowling, JL, concurred; Laughlin, J., dissented.