Dwyer v. City of New York

Memorandum by the Court. Plaintiff failed to make a prima facie case of negligence on the part of the defendants. Giving plaintiff’s evidence the most favorable inferences, it appears that on January 9, 1956, at about 9:20 a.m., plaintiff slipped and fell upon ice that had formed on a safety island as a result of sleet. It also appears that the accident occurred while it was still sleeting — a weather condition, which according to the official United States weather report for the area, had prevailed for some 10 hours prior to the accident. Coneededly, the island wasl controlled and maintained by the City of New York, and part of it was used as a bus stop. On the morning of the accident, the bus of the New York City Transit Authority, in which plaintiff was a passenger, stopped in the roadway about 10 or 12 steps from the island, and plaintiff dismounted at that point: The roadway was slushy, but not iced because of salt which had been spread in the area by the city during the night. Plaintiff walked across the roadway to the safety island — which, according to plaintiff, was glazed with ice about two inches thick — stepped upon the island, and then slipped and fell. There was no direct proof or any evidence from which an inference could be drawn that there had been any unusual accumulation of snow and ice on the island which [would make the parties liable. (Williams v. City of New York, 214 N. Y. 259.) In fact the weather report indicated that the total snowfall for the month of January, 1956 was only 1.5 inches, which, except for January, 1950, was | the lightest fall since 1934. From the evidence, the slippery condition of the island was unquestionably solely due to freezing rain and sleet deposited that morning and during the preceding night. There is no evidence to support an inference of any accumulation of ice on the safety island from January 3,! 1956 which in any way contributed to the accident. Since the accident occurred in the course of the freezing rain, the defendants were under no duty to correct the surfaces until a reasonable time after the cessation of the storm, j (Falina v. Hollis Diner, 281 App. Div. 711, affd. 306 N. Y. 586; Bressler v. Rule Realty Co., 219 App. Div. 529.) Whether the island was used as a bus stop by the defendant Transit Authority is immaterial. Plaintiff, by her own ^testimony, admits she dismounted from the bus in the roadway and not upon the icy island. There was no causal connection between discharging the passenger in the roadway and the happening of the accident. Since the accident happened when plaintiff was already on the island, she was not exposed to tjhe injury by virtue of having had to negotiate the roadway. Therefore, the complaint was properly dismissed at the close of the plaintiff’s case.