Berger v. Mayor of New York

Ingraham, J. (concurring):

I concur in the reversal of this judgment, upon the ground that the evidence does not justify a finding that the defendant was negligent. The obligation of a municipal corporation to remove gnow and ice from' the sidewalks is one that has been much discussed, but I think it is now settled that the existence of ice or snow upon the sidewalks in cities in this locality is not of itself evidence of negligence. It is only necessary to call attention to two or three late cases in the Court of Appeals. Thus, Judge Finch, in Taylor v. City of Yonkers (105 N. Y. 206), says: “ When the streets have been wholly or partially cleaned it often happens that a fall of rain or the melting of adjoining snow is suddenly followed by severe cold, which covers everything with a film or layer of ice and makes the walks slippery and dangerous. This frozen surface it is practi eally impossible to remove until a thaw comes which remedies the evil. The municipality is not negligent for awaiting that result. It may and should require householders, when the danger is great, to sprinkle upon the surface ashes, or sand or the like, as a measure of prudence and precaution, but it is not responsible for their omission. It is no more bound to put upon the ice, which it cannot reasonably remove, such foreign material than to cover it with boards. The emergency is one which is common to every street in the village or city, and which the corporation is powerless to combat. Usually it lasts but a few days, and the corporate authorities may await without negligence a change of temperature which will remove the danger.” In Kaveny v. City of Troy (108 N. Y. 571, 575), Judge Finch says: Something more than the presence of ice due to the results of a low winter temperature must be shown to make the city chargeable with negligence. The-fact that for more than ten days preceding the accident to plaintiff the mercury had been below the *403freezing point was established without contradiction, and that the city did not accomplish impossibilities or display unreasonable and extraordinary diligence furnishes no ground of liability.” In Kinney v. City of Troy (108 N. Y. 570) Judge Danforth says: “ A city is not bound to keep its sidewalks absolutely free from ice, * * *. The situation was one common to all cities in a northern climate and to all sidewalks in such cities. A sidewalk, difficult it may be of passage, but if so, from the ordinary action of the elements only, and from a formation of ice which no body of men are competent to prevent, nor under any ordinary circumstances to remove. Something more than a slippery sidewalk must be shown to enable one suffering from it to cast the burden of compensation upon the city.” These cases are quoted with approval in Harrington v. City of Buffalo (121 N. Y. 147) where it is said : “ The duty resting upon municipal corporations to remove accumulations of ice and snow as it falls from time to time upon their streets is a qualified one, and becomes imperative only when dangerous formations or obstacles have been created and notice of their existence has been received by the corporation.” And in Lichtenstein v. Mayor (159 N. Y. 500) the same principle was discussed and applied.

The situation shown to have existed in this case brings it, I think, within the principles here stated. It was the middle of a severe winter. Several days prior to the accident there had been alternate freezing and thawing, and ice had been formed upon this sidewalk. The accident happened on the twentieth of December. The first snow that fell that season, as appeared by the official of the United States Weather Bureau, was on Monday, December fifteenth, and upon that day and the following about seven and three-tenths inches of snow fell. On the seventeenth the thermometer was between thirty-six and twenty-two degrees. On the eighteenth it was between forty-four and twenty-eight degrees; on the nineteenth between thirty-four and twenty-three degrees ; and on the twentieth, the day of the accident, between thirty-two and twenty-four degrees. The sidewalk was level and properly constructed, but was rendered slippery by this ice or snow. It seems to me quite evident that this condition was one that it was impossible for the city to remedy. All the ice and snow from all the sidewalks in RTew York could not be removed, and to require the city to perform such a duty would *404be to require it to perform an impossibility. The city was not negligent in waiting for a thaw to come which would render the removal of this ice upon the sidewalk practicable. This was not a case Where snow had been allowed to accumulate upon the sidewalk for a long period and where no effort had been made by the abutting owner or the city to clean the sidewalk. The sidewalk appears to have been properly cleaned, and the condition existing seems to have been caused, in some way, by the melting of the snow or ice audits subsequent freezing. Nothing here shown would justify a finding that the city was negligent in not removing every particle of ice from, the many miles of sidewalk in the city, and there was, therefore, nothing to show negligence on the part of the defendant.

Judgment and order reversed, new trial ordered, costs to appellant to abide event.-