The action was brought to recover for personal injuries sustained by the plaintiff from a fall upon an ice-covered sidewalk in front of the defendant's building. The complaint alleged the duty of the defendant to keep the sidewalk in a safe condition for travel; that it had constructed a water pipe leading from the roof of its building, the spout of *Page 603 which extended over the sidewalk; that it did "negligently, carelessly and unlawfully omit to erect a tunnel or raceway through, or underneath, said sidewalk to conduct the water off and from said sidewalk that flowed through said water pipe and spout and negligently omitted to exercise any care or take any means whatever to conduct said water from said sidewalk;" that it did "negligently, carelessly and unlawfully suffer and permit ice to form, accumulate and remain on said sidewalk, near said water spout, in an unfit, dangerous, unsafe and improper condition and did, at the time, * * * and for a long time prior thereto, negligently and unlawfully suffer and permit water to flow from said building through said water-pipe and spout on said sidewalk and accumulate and freeze thereon * * * rendering it exceedingly dangerous, unsafe and hazardous for travel." The answer admitted the ownership of the building and the erection of the pipe and spout; and denied that the latter extended over the sidewalk, or that the defendant was liable for the injuries. The defendant offered no evidence and, the case being submitted upon the plaintiff's evidence to the jury, the plaintiff had a verdict. From the unanimous affirmance by the Appellate Division, in the third department, of the judgment upon the verdict, an appeal by the defendant has been allowed to this court.
The question for our consideration arises upon the exception taken by the defendant to the charge of the trial judge upon the subject of its liability. A motion to dismiss the complaint upon the plaintiff's evidence had been denied and the trial judge, in instructing the jury, prior to the submission of the case, after adverting to what was the claim of the plaintiff, made the following remarks: "Now you can see very well that it was possible for the rains to have descended, for the snows to have melted and to have accumulated on the top of that roof, and come down through that leader to the sidewalk, and every drop of it run away into the gutter so far off from the street, leaving the sidewalk entirely clean and clear of any snow or of any ice or of anything that was dangerous. If that was the situation then the fact that the leader was maintained there is a *Page 604 matter of no possible account to you, because it did not result in any damage to Tremblay. If, on the other hand, it had come down there and by degrees had piled up something in the way of ice that was dangerous, and in fact a nuisance there, then the reverse would be the situation. * * * If you find that the Harmony Mill maintained a pipe there which was negligence on their part, and this ice was in fact accumulated by reason of the water coming down out of that pipe and you find the other facts which I will state to you in a moment in favor of the plaintiff, then the plaintiff is entitled to recover." At the close of the charge, the defendant's counsel excepted "to that part of the charge in which the court said, if the defendant allowed this water to flow on this sidewalk from the pipe, and become dangerous or frozen, it was a nuisance — whatever was said on that subject. That the Harmony Mills was in any wise liable for the maintenance of this pipe upon the building in question, or for any discharge of water therefrom upon the sidewalk in question."
The building of the defendant was a tenement house, in a street of the city of Cohoes, and had been unoccupied for some months prior to the time of the accident. A conductor led from a gutter, along the front of the roof, down to a point near the ground; where a spout projected eleven inches from the building. It had been there eighteen years under the same conditions. The evidence fails to show that the spout, in fact, projected over the sidewalk itself. It was not alleged, nor did it appear, to have been negligently, or improperly, constructed and there was no proof that its maintenance was contrary to any municipal ordinance. On the day of the happening of the accident, in the month of December, there was an accumulation of ice upon the sidewalk; covering a large area and extending from where the spout had discharged its water to the curb line. The sidewalk was flagged and was graded down towards the curb line. The conditions were, therefore, simply those, to put it the most strongly for the plaintiff, of a house owner having suffered ice to accumulate upon the sidewalk in front of its house, as the result of the *Page 605 discharge of roof water through a conductor upon the sidewalk; where there was no defect in construction shown; but where the fault of the defendant, if any, was in its failure to provide some mode of carrying off the water and thus to make that part of the street less dangerous to passersby; of whom plaintiff happened to be one. The conditions cannot be unusual in the cities of the state. The trial judge, consistently with his denial of the motion to nonsuit the plaintiff, presented the case to the jury upon the theory, as to the defendant's negligence, in the passages cited, that liability might be predicated upon the maintenance of the water pipe, when its use caused, or brought about, a situation of danger to the traveler upon the sidewalk. I think that this was a mistaken view of the law and that the defendant's exception is available here to point out the error.
Municipal corporations are liable, as a general rule, for injuries caused by defective streets and sidewalks; because the control is vested in them and it is their duty to keep them in a reasonably safe condition. They owe the duty to the public of preventing the accumulation of ice from house conductors, or leaders, overhanging, or near to, the sidewalk. (Todd v. Cityof Troy, 61 N.Y. 506; Allison v. Vil. of Middletown, 101 ib. 667; McGowan v. City of Boston, 170 Mass. 384.) But, whatever our personal opinion might be upon the case, I think that we are concluded by authority and, unless we are going to lay down another rule of liability, than that which has received the sanction of this court, we must follow the case of Wenzlick v.McCotter, (87 N.Y. 122). The facts there were quite parallel with those of the present case. In that case, the defendant was the owner of a house in the city of Brooklyn. It was built in connection with the adjoining house and had a leader connected with the roof of the porch, which extended across the front of both houses. This leader ran down through the center of a column, between, and partly upon, both houses, until it reached the stoop. It then turned entirely on to defendant's premises, came through a hole in the baseboard of his stoop, and extended out on to the sidewalk in front of his house. This *Page 606 leader had been there for twenty years and had originally been used to carry off the water from both houses; but, at the time of the accident in question, only the water from the adjoining house passed through it. The defendant, at the time of the accident, was not in possession of the premises, having leased them to a tenant. Upon a day in the month of December, in the evening, the plaintiff, while passing in front of the house, stepped on a mound of ice, formed from the water discharging from the mouth of this pipe on to the sidewalk, and, slipping, fell and broke her ankle, and for the injury thus occasioned the action was brought. Judgment was given for the plaintiff, on the ground that the conductor was a nuisance and defendant's liability the same as if the water had come from his own premises. DANFORTH, J., writing the opinion, said: "It is well to observe that the proof failed to sustain the averment of the complaint as regards the position and extent of the pipe upon the sidewalk. It did not reach the street, nor did it abridge the area of the walk. Nor does the decision below, or the contention of the respondent, rest upon that averment. Both stand upon the fact that it was the medium through which water was discharged thereon. I do not, however, find the law to be that a conductor pipe, designed to convey water from the roof to the ground, when constructed with due care and proper precaution, is in itself unlawful, so that it can be deemed a nuisance, even if its mouth is toward the walk, and it discharge upon it. * * * The water itself caused no injury; nor was the owner forbidden by any ordinance to relieve his roof in that manner. * * * As the care of streets and sidewalks is intrusted to the municipality, if they do not object to the discharge, I do not see how an individual can. Once upon the walk and there frozen and permitted to remain, it may subject the municipality to an action for omission of duty." In this opinion all the judges of this court concurred.
In Moore v. Gadsden, (87 N.Y. 84), the action was brought to recover damages for injuries caused by slipping and falling upon the sidewalk, in front of a vacant house of the defendant's *Page 607 in the city of Brooklyn, where ice had accumulated and had not been removed. On the trial, it appeared that a portion of the ice was formed from snow melting in defendant's yard, and flowing thence onto the sidewalk; also that snow, which had fallen ten days before the accident, had not been cleared away, and that all the other walks in the same block had been cleared. DANFORTH, J., writing the opinion of the court, said: "The general doctrine is, that the public are entitled to the street or highway in the condition in which they placed it, and whoever renders the use hazardous, by placing anything upon it, is guilty of a nuisance. (Congreve v. Smith, 18 N.Y. 79.) The plaintiff's case is not within it. The sidewalk was constructed to receive the drip from the steps and yard, and so graded as to discharge itself into the gutter. If, by reason of obstruction, which it was the duty of the city or its officers to remove, it failed to do its office, the defendant cannot be made liable." The doctrine was reiterated, later, upon a second appeal in Moore v. Gadsden, (93 N.Y. 12).
I think the judgment should be reversed and that a new trial should be ordered, with costs to abide the event.
BARTLETT, MARTIN and VANN, JJ., concur with CULLEN, J.; PARKER, Ch, J., and O'BRIEN, J., concur with GRAY, J.
Judgment affirmed.