On the 2d day of February, 1895, as the plaintiff was walking on the north sidewalk of One Hundred and Forty-fifth street, between Amsterdam and Convent avenues, he slipped and fell and received serious injuries. He brings this action to recover the damages which these injuries caused to him. Fie claims that the sidewalk at the place where he fell was dangerops because the flagging had been permitted to become rough and uneven and in an unsafe condition by reason of faulty construction and want of repair; and that the snow had been permitted to accumulate upon this rough and uneven sidewalk, and had been beaten down by the constant passage of footmen until it had become icy and slippery; and that this condition of affairs had existed for so long a time that it was the duty of the defendant’s officials to know of it and remedy it, and that he fell upon the ice thus negligently permitted to accumulate. Upon the trial he had a verdict. After the verdict, a motion for a new trial *533was made upon the judge’s minutes, which was denied, and this appeal is taken from the judgment entered upon that verdict and from the order denying a new trial.
That the plaintiff slipped and fell at the place where he said he did and received serious injuries, although not admitted, was not seriously disputed ; but the questions litigated were as to the condition of the sidewalk, and whether it had been in that condition so long that the defendants might have been charged with negligence. Upon these points it was not disputed that the flagstones upon the sidewalk had been displaced, and that the walk was rough and uneven on account of the lack of repair; and while this was not insisted upon, and was not permitted to be considered by the jury as the ground upon which a verdict should be rendered, yet, undoubtedly, that condition must be considered as likely to increase the dangers to passersby if the sidewalk was covered with ice and snow. It is easy to be understood that the inequality in the sidewalk would make the ice more dangerous, and, because of the accumulation of ice upon an uneven sidewalk, one passing upon it would be more apt to slip and fall than if the sidewalk had been kept in proper repair. While the sidewalk itself was not necessarily or probably a proximate cause of the slipping, yet the condition of the sidewalk was such as to increase the probability that anybody going over it, if the ice were permitted to accumulate there, would fall or be hurt. In that respect the case is like that of Conklin v. City of Elmira (11 App. Div. 402). The general rule as to the duty of municipal corporations, undoubtedly, is that they are required to use reasonable care to see that the highways are in a reasonably safe condition for those who have occasion to use them. When, however, the dangerous condition of the sidewalk is claimed to result from accumulations of ice and snow, the duty of the corporation is somewhat qualified. It becomes imperative upon the corporation to remove accumulations of ice and snow only when dangerous formations or obstacles have been created and notice of their existence has been received by the corporation, or sufficient time has elapsed to afford presumptive knowledge of their existence and opportunity to effect their removal. (Harrington v. City of Buffalo, 121 N. Y. 147.) This rule has been well settled in this State. In the application of this rule it has been held that the *534mere fact that a sidewalk had been permitted to be incumbered with ice so that it was dangerous to passersby was not of itself a ground for charging the corporation with negligence. It is entitled, in the first place, to a reasonable time within which to cause the snow and ice to be removed. Whether the streets have been cleaned or not, it often happens that - the fall of rain, or the melting of the snow, is suddenly followed by severe cold, which covers everything with a film of ice and makes the walks slippery and dangerous, and it is practically impossible to remove this frozen surface until a thaw comes which remedies the evil. Usually it cannot be held to be negligence under those circumstances for a corporation to await the change of temperature which shall remedy these conditions, and it is not chargeable with negligence for injuries which happen upon a sidewalk which has become dangerous because of such a sudden freezing. (Taylor v. City of Yonkers, 105 N. Y. 202.) Applying these rules to this case it will be seen that the plaintiff was bound to show by a fair preponderance of the evidence that, when his fall took place, the sidewalk was in a dangerous condition because of the ice which had been permitted to accumulate at that place, and which had remained for so long a time that it could he said that the corporation was guilty of negligence in not requiring it to be removed. The plaintiff’s story was that on the second day of February he had occasion to walk over this place; that before that, as he had passed it, he noticed that the snow had been permitted to remain there, and had been trampled down until the surface of it had become icy.and slippery; that he called the attention of a police officer on that beat to the fact, and that the policeman scattered some ashes upon it, but over how great a space or to what extent does not clearly appear. He says that at that time there was a surface of ice upon this rough flagging, and that the walk was slippery. The precise condition of the weather during the second of February is somewhat in doubt. The plaintiff said that it hailed early in the morning when he was coming home from his work, which was night work, and it is undisputed that several inches of snow fell during the day, but there is nothing to show that, at any time during the day, it had frozen or any ice had been added to the accumulation that already existed. Evidence of several witnesses besides the plaintiff was given to the effect that the snow had been permitted to accumulate during *535the whole winter upon this walk; that it had rarely or never-been removed, and that because of the accumulation of snow the walk had been, during all the winter, slippery and dangerous. There was, to be sure, testimony offered on the part of the defendant that the walk had been cleaned off and kept clean; but wlrether that was true or not was clearly a question for the jury, who would have been more than justified in finding that the story of the plaintiff’s witnesses in regard to the condition of this walk was true.
The important question, however, was whether there was evidence from which the jury might have found that this accident happened because of the old ice that had been 'permitted to remain upon the walk, or because of a new accumulation of ice which took place on the second of February, which the defendant had not had an opportunity to remove, or of which it had not had notice. Starting with the proposition, which was clearly established, that the ice had been rarely removed from this walk, it was made to appear by several witnesses that for a considerable time before the second of February the walk had been slippery and in bad condition. It was not disputed that on several days the weather had been warm and the ice had thawed to some extent, and the weather observer testified that on the twenty-seventh of January there was no ice or snow anywhere in the city. But he testified further that the observation upon which he gave that testimony was confined to places where the ice was not trampled down and where nobody had passed. He did not pretend to say that upon every sidewalk where ice had been permitted to accumulate, the short period of warm weather which took place about the twenty-seventh of January, had melted away every such accumulation. On the contrary, the evidence of the plaintiff’s ■witnesses was positive to the effect that the accumulation at this place had not been melted away, and the knowledge of the conditions warranted the jury in believing their testimony, because it is common knowledge that snow which has been thus trampled upon the sidewalk is hard to melt, and that several days of warm weather have the effect simply to soften the top of it, leaving it again to become icy and slippery whenever a few hours of cold shall occur. The jury might have found then that, on the twenty-seventh day of January and down to the second of February, there still remained on this sidewalk an accumulation of ice. It is said that it snowed *536on the second of February, and that, undoubtedly, is the case; but the evidence was that the plaintiff fell, not because lie slipped upon the newly-fallen snow, but that he slipped upon the ice which lay under it and which had been there for a considerable time. He says that he slipped and fell, and when he got up he saw that his body had brushed the snow off the ice and there ivas ice underneath. In that regard his testimony is corroborated by the evidence of Dunn that the snow began at sixty-thirty a. m. and ended at two-forty p. m. ; that two and two-tentlis inches of snow fell, and that the lowest temperature on that day was twenty-five and the highest thirty-two, although at some time in the very warmest part of the day it went as high as thirty-five. But it is quite evident from this testimony that there was no time during the day when the old ice upon the sidewalk had thawed, and that the condition was that which is so often seen of a light fall of snow upon an icy sidewalk which, as every one knows, renders the sidewalk more dangerous than if no snow had fallen upon it at all. The jury might have found that this was the condition of affairs. In fact if they repudiated, as they might, the testimony of the witnesses for the defendant, who said in a general way that the sidewalk had been cleaned off, there was no conclusion to which they could have come, except that at the time the plaintiff fell there was an accumulation of 'slippery ice upon this sidewalk and over it a slight fall of snow, and that this ice had been permitted to accumulate for a considerable length of time. As to the condition of the ice there was some inconsistency in the testimony, to be sure. The plaintiff testified that, when he got up after falling, he looked at the place where he fell and saw that the snow had been brushed off and that the ice below was smooth. Other witnesses testified that the ice was not smooth exactly. One of them testified that lie was familiar with the condition of affairs there ; that the ice was “ hobbly,” not smooth exactly; it had been snow that had frozen and become ice, and other witnesses testified to substantially the same condition of affairs. The word “ hobbly ” is an unusual one, but the meaning of it is, rough like a road and not smooth. The jury might have found from this testimony that the ice was not smooth, even ice, but was somewhat rough. But if they had found that the ice was smooth and even, it would not by any means have exonerated the defendant for negligence in permitting *537it to accumulate upon the sidewalk. There is no rule of law which relieves a municipal corporation from the charge of negligence for permitting an accumulation of ice upon the walk, because the ice is smooth, and only charges it with negligence if the ice shall have become rough. The danger exists because the sidewalk is slippery, and if the municipal corporation permits the ice to remain upon the walk after it should have removed it, it is liable because of the failure to remove it, and the fact that the ice is smooth and not rough and, therefore, more slippery, is all the more reason for charging it with negligence. It is quite true in this case that the judge told the jury that if they believed the testimony of O’Keeffe that the ice was smooth, the plaintiff was not entitled to recover. That instruction was one to which the defendants were not entitled, because it was not the law. Nevertheless, the jury were bound by it. But they were not bound by the testimony of O’Keeffe, and it was their duty upon all the testimony to conclude what was the condition of the ice, and the great preponderance of the testimony was, that the ice was not smooth but was rough and uneven, and the jury might have found, and did find, that it was that condition which caused the plaintiff to fall.
The case of Taylor v. The City of Yonkers (105 N. Y. 202) is not at all in point. In that case there was no doubt upon the evidence, and the court so held, that the immediate cause of the accident was new ice just formed upon a layer of old ice which had been so covered with sand as not to be unsafe. The ground of alleging liability in that case was, that the new ice was formed upon a slope. The court held that if the slope was one concurring cause of the fall, without which the accident would not have happened, the city was liable, but that there was nothing in the case which pointed to the slope as a concurrent cause, beyond the fact that it existed; and so that, upon the testimony, the jury must have found that the only cause of the fall was the ice for which, under the circumstances, the city was not liable and, therefore, the plaintiff could not recover. This case, however, is entirely different. There is no claim that the fact that the sidewalk was out of repair was any cause whatever of the accident. It was entirely eliminated from the case by the charge of the court, and the jury could only find a verdict ’ *538for the plaintiff here upon the theory that there had been permitted to be an accumulation of ice which rendered the sidewalk dangerous, and that accumulation had continued so long that the city ought to have had it removed. There was evidence enough to warrant that finding, and we cannot reverse this judgment upon the ground that it was against the weight of the evidence, without intruding upon the dominion of the jury and throwing aside testimony which they were bound to consider and which was sufficient to establish the plaintiff’s case.
As has been mentioned, the court charged the jury that if they believed Mr. .O’Keeffe’s statement that the ice upon which he fell was smooth and even their verdict must be for the defendant. That was not a correct statement of the law, but nevertheless the jury were bound by it, but they were not bound to believe Mr. O’Keeffe’s statement, as we have said, because there was sufficient evidence in the case to prove that the ice upon this sidewalk was not smooth but was rough and uneven.
The only other question which requires examination is an objection to the admission of evidence. The injury to the plaintiff was a broken hip. He had stated without objection that his leg was stiff. He was then asked, c’ How 'is it with regard to walking ? ” to which he answered that he walked quite lame. To this evidence an objection was taken upon the ground that there was no allegation of permanent injury or of special damage. The evidence was insisted upon as sufficient under the complaint, and the court, after considerable discussion, admitted it. It is quite true that the plaintiff in actions of this character cannot recover for permanent injury unless he has alleged it, or unless the injury which he does allege is such that necessarily it is permanent, but he is entitled to prove whatever he has alleged. In this case the plaintiff alleged that he fell, broke his hip and did great injury to his person so that he has suffered, and does still suffer, great pain and anguish, and was and is prevented from performing his daily labor and attending to his avocation. Under that allegation he was clearly entitled to show what his condition was down to the time of trial, and whatever was the natural and usual result of the injury which he-had received. (Ehrgott v. Mayor, 96 N. Y. 264.) The fact that he was lame at the time when he was giving his testimony was clearly competent *539under this complaint, and for that reason the court was not in error in admitting that testimony. Upon a careful examination of this case we are forced to the conclusion that the testimony presented by the plaintiff, if believed by the jury, clearly tended to establish negligence on the part of the municipal corporation in permitting the accumulation of ice and snow upon that walk for a long period of time and justified the conclusion of negligence which was reached.
Judgment and order must be affirmed, with costs.
Barrett, J.:I also think that this judgment should be affirmed.
Judgment reversed, new trial ordered, costs to appellant to abide" event. .