Hawthorne avenue is a public street in the city of Yonkers, descending northerly to Main street at a very steep grade —14.2 feet in 100. Along the sidewalk on this avenue, opposite premises owned by one Schleuter, is a high retaining wall through which a pipe leads, forming an overflow discharge for surface water accumulating on the premises and conducted into a deep basin underneath the sidewalk. On February 20, 1904, the plaintiff, while passing over a sidewalk on .this street, slipped and fell at a point nearly opposite the pipe referred to, sustaining the injury for which she has recovered in this action. The evidence tends to establish that at the place of the injury there was ice upon the walk, in ridges, which had accumulated some time before, and that the sidewalk had been in practically the same condition, so far as the accumulated ice was concerned, for at least three weeks prior to the injury. The temperature did not rise above thirty-two degrees from February fifteenth until three o’clock in the afternoon of the twentieth, when it was thirty-four degrees, dropping back to thirty-two at six o’clock and to twenty-one at midnight. During the night of February eighteenth it commenced to snow; the storm continued at intervals through the night of the eighteenth and all day the nineteenth, three inches of snow falling, which had not been removed from the walk in question at the time the plaintiff fell.
The evidence in this case establishes practically the same conditions that existed in Taylor v. City of Yonkers (105 N. Y. 202), and the principle of law established by that case, that where there are two concurring causes producing an injury, for one of which the municipality would be liable and for the other of which it would not, the plaintiff cannot recover unless it appears that but for' the *752former cause the injury would'not have been sustained, is applicable to the case-at bar. In the case cited, as in this case, dangerous conditions had existed in the walk for a sufficient length of time prior ■ to the Injury to charge the -city -with, notice and fix its liability. Jn that case a new walking surface had- been formed by new ice recently formed, which condition had not,existed for a sufficient length of time to establish, negligence ón the part of the city in not removing it, and the plaintiff slipped upon this new 'surface. The same conditions, exist .in this case,, with the exception that the new walking surface was composed of snow, instead of ice, which had fallen the day before uniformly throughout the city and had been trodden down by persons traveling over it, so that it became smooth and slippery, for which condition the city was not liable because sufficient time liad not elapsed since the storm to charge the city with knowledge of such condition ; and it was upon this newly-trodden-surface that the plaintiff in this action fell. The fact that bliis new surface was composed of smooth-and slippery snow instead of ice newly formed, does not remove .-.the casé from the operation of the principle stated. ■ In this case, as in "the Taylor case, the jury were charged that if the storm occurring on the day prior to the accident was the cause of the injury, the plaintiff was not entitled to recover, and. unless they were satisfied by a fair preponderance pf the'evidence that the injury-would not have been sustained in the absence of the former-dangerous conditions—“that she fell because them were -ridges of ice .there, and would not have fallen unless- there-were ridges-of -ice there ” the defendant was entitled to their verdict. Under the charge; the j ury in- arriving at a Ver-' diet fór the plaintiff necessarily found that the ridges of ice were a concurring- cause, without which the injury would not. have happened. . • ... ■ , ■-
We. thus reach the inquiry whether the record discloses 'facts-which warrant that conclusion, or whether the verdict in this respect ■ was the result of surmise and speculation.
Prior .to the twentieth, while the same' condition as to the ridges of ice upon the walk are shown to have existed, the plaintiff passed over the walk five or six times-without slipping or falling. The evidence as to the manner-in which she slipped is very meager, and the case is,-barren of any proof establishing or warranting the inference *753tliat she stepped on one of the existing ridges and that her foot slipped therefrom, causing the fall. She was alone when she fell, and there was no eye-witness of the accident. On her cross-examination she testified: “ I said just a few minutes ago that I thought snow fell the day before there was snow on Friday. That" snow on top of those ridges had not been cleaned off on Saturday,
I am sure of that. The snow that lay on this ice,-of those ridges, on which I fell, was the snow that had fallen the day before. I am positive that that snow that fell the day before had not been cleaned off, and I am positive that that snow was the snow that covered those , ridges on Saturday, the day I fell. Q. In other words, that less than twenty-four hours had elapsed between the fall of this snow and your fall on those ridges of ice. You fell on those ridges within one day after the snow fell? A. Yes, sir. Q. And that snow was still there and had not been removed ? A. Yes, sir. I fell a quarter or ten minutes of seven. I left the house a quarter of seven. I say that this sidewalk was icy at this place where I fell. It was the snow that was worn smooth that had fallen the day before.” This evidence hardly admits of any inference other than that the existing ice ridges on the walk had been covered by a new surface of snow, falling on the day before, which had been trodden down to smooth ice by travel,, and upon this new icy surface the plaintiff slipped and fell. Ho one can say with any degree of certainty that if 'this sharply-slanting walk had been clean when-the storm of the day before commenced, and the three inches of snow falling had spread uniformly over its surface and had been trodden down until it formed smooth ice, the plaintiff would not have fallen the same as she did. Adopting the language used by the court in the Taylor (Jase (supra), the plaintiff slipped upon this new-formed icy surface. That by itself was a sufficient, certain and operating cause of’ the fall. Ho other explanation is' needed to account for what happened. It is possible that the ice ridges existing when the storm commenced had something to do with it. It is also possible that they did not. There is no proof that they did. To affirm it is a pure guess and absolute speculation. The fact that the plaintiff had passed' over the walk in its ice-ridged condition on several occasions immediately prior to the formation of the new surface *754by the storm of the eighteenth, without discomfort or injury, if 'it does not warrant the inference that the dangerous conditions causing the injury were confined arid limited to the newly-formed trodden-doWn icy surface,' for which condition the defendant was not liable, makes it just as probable that the injury was the result of the new condition without the concurrence 'of the- ridges, ■ as .that they formed a concurring cause, and- brings the case .within the rule laid down in Searles v. Manhattan Railway Co. (101 N. Y. 661), that the plaintiff must fail if it is just as. probable that the injury was caused by the one as by the other, as the plaintiff is boundffo make out his case by a preponderance of the evidence. “ The jury must not be left, to mere conjecture,” says Earl, J., in the case cited, “ and a bare possibility that the damage was caused in consequence of the negligence and unskillfulness of the defendant is not sufficient.” The evidence fails to sustain the inference that the icy ridges complained of were a con. cnrring cause of the injury, being limited to the bare fact that they existed,’and the motion for a nonsuit should have been, granted. (See, also, Kaveny v. City of Troy, 108 N. Y. 571 ; Moran v. City of New York, 98 App. Div. 301.) The learned trial court charged the jury as' follows: “ The city is.obliged to keepits' streets in good, safe, passable condition. It is obliged to keep its sidewalks in good safe, passable condition for persons to walk over; but the law does not require anything unreasonable of the city. It certainly does not require anything, impossible. It goes further than that, and does not require anything unreasonable, and where the conditions by a sudden change of the weather become dangerous it is. not reasonable to expect the.city officials to go and remove them immediately.” At the conclusion, of the charge the record shows an exception to this instruction, as follows: “Hr. Winslow: I desire to take exception to your Honor’s charge ■ that the city is obliged to . , keep its'streets in good, safe and, passable condition. The Court: 1 Subject to the conditions that I have already charged them ; that there is reason in all things, and thát they cannot be expected to keep them as clean as the floor of a room; subject to change in temperature; subject to the accumulation of ice which they cannot in reason ktiow of., I think I went into that pretty fully. Exception. to Hr. Winslow.” The charge in this respect was erroneous *755and did not correctly state the liability of the defendant. The error was not cured by the remarks of the court, and the exception was well taken.
For the reasons stated I think the judgment and order should be reversed and a new trial ordered, costs to abide the event.
Jerks, J., concurred.
Judgment and order of the Oounty Court of Westchester county affirmed, with costs. .