(192 App. Div. 359)

(182 N.Y.S.)

DE BOULET v. CITY OF NEW YORK.

(Supreme Court, Appellate Division, First Department. June 4, 1920.) 771-City not under duty in first instance to re

1. Municipal corporations

move snow and ice from sidewalks.

No duty rests upon a municipality in the first instance to remove snow and ice from the sidewalks, where it has devolved that duty by ordinance on the owners and occupants of abutting property.

2. Municipal corporations 771-City not required to use extraordinary diligence in removing ice and snow.

A city's duty, on actual or constructive notice that an accumulation of ice and snow on the sidewalks has become dangerous to public travel, to remove it, does not require the city to display unreasonable and extraordinary diligence, or to remove the dangerous accumulations, unless removable by ordinary and reasonable means and methods.

3. Municipal corporations 822 (1)-Instructions in action for injuries on icy sidewalk improper as tending to mislead.

In action against city for injuries to a woman, who slipped on snow and ice on a sidewalk, instructions held improper as tending to mislead the jury, in that they eliminated the vital question as to whether the condition of the ice and snow rendered the walk dangerous for public travel, and, if so, at what time the dangerous condition arose to start the running of constructive notice to the city.

4. Municipal corporations 821 (7)—Whether snow and ice rendered walk dangerous a jury question.

In action against city for injuries to woman, who fell on sidewalk on account of snow and ice, instruction charging substantially as a matter of law that, if the condition of the walk existed for 4 or 5 days, it was in a dangerous condition, held erroneous; the question being for the jury.

Appeal from Trial Term, New York County.

Action by Jeanne De Boulet against the City of New York. From judgment for plaintiff, and from an order denying its motion for a new trial, defendant appeals. Judgment and order reversed, and new trial ordered.

Argued before CLARKE, P. J., and LAUGHLIN, SMITH, PAGE, and MERRELL, JJ.

William P. Burr, Corp. Counsel, of New York City (Henry J. Shields, of New York City, of counsel, and James F. O'Brien and David C. Broderick, both of New York City, on the brief), for appellant.

Gardenhire & Schlesinger, of New York City (Mark M. Schlesinger, of New York City, of counsel), for respondent.

LAUGHLIN, J. This is an action for personal injuries sustained by the plaintiff from slipping and falling on ice on the southerly sidewalk of West Seventy-Ninth street in front of the premises known as Nos. 168-170 West Seventy-Ninth street, on Wednesday, the 12th day of December, 1917. The plaintiff resided and conducted a rooming house and dressmaking business at No. 160 West Seventy-Ninth street in the same block and a few doors easterly of the point where she met with the accident. She left her house, between 12 and 1 For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

o'clock in the middle of the day, wearing laced shoes with broad Cuban heels, and walked westerly on the sidewalk en route to a locksmith's on Amsterdam avenue.

She testified that she noticed that there was a heavy layer of crushed snow on the walk, which she had noticed for several days prior thereto, and that she was walking as carefully as she could, but that she slipped and fell; that it snowed all day the preceding Saturday, and that about three inches of snow fell during that storm; that she had the snow removed from her walk, but that none of it was removed from Nos. 168-170 from the time it fell until after she met with the accident; that it continued freezing weather from the time the snow fell, and that in front of the premises where she fell the snow had become "iced," and that there was no ashes or other substance spread upon its surface; that there was a slight snowfall the morning she fell, but that at the time of the accident it was a bright, clear day; that the condition of the walk where she fell "was not good" on Sunday, but that "it was not as bad as on the 12th," and that it became "worse" and "got harder" between the 9th and 12th; that on Sunday it was freezing, but in front of the premises in question the accumulation on the walk looked like plain white snow about three inches thick, and that "it was getting glassy," and that on Monday it was freezing hard, and that the only change she observed in the condition of the snow on the walk was that it was "harder," and that it was then "hard, just hard like ice"; that it continued freezing cold weather, and the snow which fell Wednesday morning, which she could not say amounted to one-fourth of an inch, was on the walk, crushed down by people walking over it; that the sidewalk was not sufficiently dangerous, excepting at the spot where she fell, to require the wearing of rubbers, and that at the time of the accident, owing to the light fall of snow that morning, the appearance of the walk was "like crushed snow that had been tramped; it did not look so icy," and she said it looked to her "just like crushed hard snow," over which people had walked, crushing it up like ice, and that where she fell it looked like smooth ice, and that the snow and ice at that point were "lumpy" and "irregular," and did not present "a smooth surface," and that she fell on ice covered with crushed snow, and that she saw smooth ice where her body landed. A neighboring woman, called as a witness for the plaintiff, testified that the sidewalk where the plaintiff fell was "full of ice and snow, very heavy ice, very lumpy and heavy ice, the worst condition I have ever seen," and that it had remained so for four or five days, and that "there was ice and snow, great, big, heavy chunks of ice, which had been there several days"; that the snow had been walked on and presented a dirty appearance, and that it was very hard "to walk over"; that the snow on the ice was bedded right into the sidewalk, and was very hard to walk on; and that the snow and ice was so thick that it would require an ax to break through it.

A police officer called by the defendant testified that between the 8th and the 12th of December, 1917, all of the walks in the vicinity were covered "with a kind of sheet ice," and that he had given all

(182 N.Y.S.)

property owners notice to remove it, but that before the 12th the sidewalks had been cleaned, and in effect that this particular walk was cleaned diligently; but on cross-examination he said he could not say that he saw the walk cleaned from the 8th to the 12th, or that there was not snow and ice on it two or three inches thick. Another police officer testified that there was some ice on part of the sidewalk, but that it was covered with salt, sawdust, and sand; and a third officer testified that according to his recollection the sidewalk was cleaned, but that there was a little ice on it, which was covered with ashes and salt, and that he had seen the walk cleaned after the snowfall of the 8th, and that it was part of his duty to report sidewalks that are in a dangerous condition as a result of an accumulation of snow and ice, and that he did not so report the walk in question.

The janitor, whose duty it was to clean the sidewalk, testified, in substance, that he removed the snow that was removable and put on rock salt and ashes. Another witness for the defendant, the Mother Superior of the convent in front of which the sidewalk was, testified that a school was conducted there, and that the janitor cleaned the walk every day, and that on Saturday afternoon and evening, after the snow fell, it rained, and that then the weather became extremely cold, and that ashes, salt, and sawdust had been spread over the sidewalk, covering the ice, and were on the surface of the walk the 9th, 10th, 11th, and 12th and that this was its condition at the time of the accident.

The defendant also showed by the testimony of the officer in charge of the United States Weather Bureau in the city of New York how the records of the Bureau were kept, and that the weather conditions were such that there could be no snow or ice at the time of the snowfall of December 8th, and that on December 8th snow commenced falling at 10:17 a. m., turning entirely into rain at 4:45 p. m., at which time about two inches of snow had fallen, and that the rain was very heavy, and that something over one inch of rain fell after the snowfall ended; that the rain tended to melt the snow, and that not more than one-half of an inch of snow remained on the ground at 8 p. m. that day; that no rain or snow fell on the 9th; that on the 10th three-tenths of an inch fell, and that on the early morning of the 12th two-tenths of an inch fell, and that there was no other precipitation; that on Saturday the temperature was below freezing until 3 p. m., and that it rose to 45 degrees at 8 p. m., and fell to 38 degrees by midnight, and that it continued falling to 15 degrees on the 9th, and remained well below freezing from that time on until after the accident, going down to 9 degrees on the 11th; that the entire depth of snowfall on the 8th was only two inches, and that considerable of this melted, and that generally throughout the city the rain melted the snow, so that only about one-half inch remained when the rain ceased, and that there was not a natural accumulation of snow and ice of two or three inches between the 8th and the 12th on any walk; that when the rain fell on the two inches of snow it changed it into slush, and that where the snow did not melt

or the rain did not wash it away there might have been one or two inches of slush, which froze that night.

A city ordinance enjoined upon abutting property owners, lessees, tenants, and occupants or persons having charge thereof the duty of removing snow and ice from paved sidewalks within four hours after the snow ceased to fall, but excluded therefrom the time between 9 p. m. and 7 a. m. Under that ordinance no duty was enjoined to remove the snow that fell on Saturday until Sunday morning at a time when, according to the evidence, the snow would have turned into slush and would have been frozen hard, so that it could not have been removed except with great difficulty. It may be that under the recent decisions of the Court of Appeals in the case of Williams v. City of New York, 214 N. Y. 259, 108 N. E. 448, the evidence presented a prima facie case for the consideration of the jury, but in view of the comparatively small amount of snowfall, not exceeding two inches, according to the records of the Weather Bureau, which should be accepted rather than the indefinite opinions of witnesses, and of the weather conditions preceding such snowfall, there could not have been a natural accumulation of snow or ice, or both, on the walk to the extent testified to by some of the witnesses for the plaintiff. [1, 2] It is well settled that no duty rests upon a municipality in the first instance to remove snow and ice from sidewalks where, as here, it has devolved that duty upon the owners or occupants of abutting property, and that until an accumulation of ice and snow upon the sidewalk becomes dangerous to public travel, and the city has either actual or constructive notice of such dangerous condition, and a reasonable time has elapsed after such notice to afford it an opportunity in the exercise of reasonable care; to remove the dangerous accumulation of ice and snow, and the performance of this duty, when it arises, does not require the city to display unreasonable and extraordinary diligence, or to remove dangerous accumulations of snow and ice, unless they are removable by the employment of ordinary and reasonable means and methods. Harrington v. City of Buffalo, 121 N. Y. 147, 24 N. E. 186; Kaiser v. City of N. Y., 184 App. Div. 866, 172 N. Y. Supp. 626; Village of Carthage v. Frederick, 122 N. Y. 268, 25 N. E. 480, 10 L. R. A. 178, 19 Am. St. Rep. 490; Crawford v. City of New York, 68 App. Div. 107, 74 N. Y. Supp. 261, affirmed 174 N. Y. 518, 66 N. E. 1106; Taylor v. City of Yonkers, 105 N. Y. 202, 11 N. E. 642, 59 Am. Rep. 492; Peard v. City of Mt. Vernon, 83 Hun, 250, 31 N. Y. Supp. 395, affirmed 158 N. Y. 681, 52 N. E. 1125; Gaffney v. City of New York, 218 N. Y. 225, 112 N. E. 725; Kaveney v. City of Troy, 108 N. Y. 571, 15 N. E. 726; Betts v. Village of Gloversville, 8 N. Y. Supp. 795.1

The court in the charge in chief did not refer to the city ordinance devolving this duty on owners or occupants of abutting property in the first instance, instruct the jury that there was no duty on the city until it had actual or constructive notice that there was a dangerous accumulation of ice and snow on the sidewalk; that after such notice

1 Reported in full in the New York Supplement; reported as a memorandum decision without opinion in 56 Hun, 639.

(182 N.Y.S.)

it was entitled to a reasonable time under all the circumstances within which to protect the public against the danger. The court charged the general rule of law with respect to negligence and contributory negligence and that the duty devolved on the city to keep the sidewalks in a safe condition for public travel, but it was not an insurer of pedestrians, and stated that the plaintiff rested her case on proof that the sidewalk was in an unsafe condition, and that it so continued for such a length of time that the city had constructive notice thereof. At the close of the charge the court further instructed the jury, at the request of the attorney for the plaintiff, that if they found that the pavement in question "was covered with ice, or iced snow, for four days or so prior to the accident, then a dangerous and an unusual condition of the street existed." Thereupon plaintiff's counsel requested the court to charge that, if they so found, then there was a lapse of time sufficient to charge the city with constructive notice "of that condition," whereupon the court said:

"That is, if it existed for four or five days, and the city did have a fair opportunity of putting it in a safe condition, bearing in mind all the time that there was an obligation on the part of the plaintiff to act in going over it, even under those circumstances, in the way in which an ordinary prudent person would act."

Counsel for the defendant excepted to the first request charged for the plaintiff, and requested the court to charge:

"That to hold the city liable the jury must find that it was dangerous, unusual, and exceptional; that is, different from the streets in general throughout the city."

To this request the court replied:

"That is so. I will so charge in connection with the other. I will let the other stand and charge that."

[3] I am of opinion that the jury may well have misapprehended their duty under those instructions. The first request of the plaintiff, which was charged, took from the jury the vital question as to whether the condition of the ice or iced snow rendered the walk dangerous and unsafe for public travel, and, if so, at what time did the dangerous and unsafe condition arise, so as to start the running of constructive notice to the city, and embodied rulings thereon in favor of plaintiff as matter of law. I am of the opinion that on these facts those points should have been left to the determination of the jury. The learned trial court, in so ruling, followed a statement in the opinion of the Court of Appeals in the Williams Case, supra, which I think could not have been intended for the instruction of juries, for none of the many former decisions of that court, plainly holding that such questions on like facts are for the jury, was overruled.

[4] This error was not corrected by the additional charge, for the first request stood as charged, and laid down an erroneous rule for the guidance of the jury in determining what was a dangerous condition of the walk for they were instructed, in effect, as a matter of law, that if the walk was covered with ice or iced snow for four days, then it was in a dangerous and unsafe condition. That by no means