On the 19th of February, 1905, the plaintiff sustained very serious injuries by slipping upon an accumulation of sand, ice and snow upon the sidewalk. This accumulation was from six to eight inches in deptli at the highest point, some two feet or more in length, and extended from a point near the curb line clear across the sidewalk. The proof at the trial justified the jury in finding that this accumulation had existed for nearly two months and was in substantially the same condition when the accident occurred that it was on the twenty-fifth of December preceding. At the conclusion of the trial there certainly was a question of fact for the jury as to how long the obstruction had existed and their finding in favor of the plaintiff that it did in fact exist, and had existed for such length of time that the city was bound to remove it, cannot, I think, be said to be against the weight of evidence. But it is proposed to reverse the judgment solely upon that ground.
The fact that an obstruction had existed of substantially the character stated from about the twenty-fifth of December preceding to the first of February, was not seriously disputed, but it is claimed that when the hydrant ref erred to was repaired, the first of February, a fire was built around it which melted and removed the obstruction on the sidewalk which had theretofore formed, and that the city was not liable for obstructions which thereafter formed, by rea*55son of the condition of the weather. The hydrant was repaired at the time stated, in order to do which a fire had to be built around it, but the testimony is insufficient to sustain a finding that the obstruction upon the walk was removed by it or that it did not remain in substantially the same condition, after repairs, as it was before.
The photograph in the record shows the obstruction and the plaintiff’s witnesses Finck and Florence Meyer testify not only as to its correctness at the time the accident occurred, but also that the obstruction then was in substantially the same condition that it had been for several weeks. Finck was employed in a building only a few feet away. He noticed the obstruction from day to day and sometime prior to the accident heard a policeman’s attention called to it and a request made that it be removed. The witness Meyer also noticed it every day for several weeks prior to the accident. Finck also saw the repairs which were made to the hydrant and testified that the only flagging .which was removed was the one placed around the hydrant, and in this he was corroborated by at least four witnesses produced by the defendant. The hydrant was located ten inches from the curbstone. To me it seems incredible that a small fire built around the hydrant, with the temperature as low as that stated in the prevailing opinion, could have removed the obstruction upon the walk, but whether it could or not was a question for the jury.
That the plaintiff was seriously injured by an obstruction upon the walk is not disputed. How long the obstruction had existed is not shown, except by the plaintiff’s witnesses — two of whom (and they were disinterested) stated that the same had existed for several weeks, and a portion of that time the temperature was such that the same could easily have been removed. The credibility of these witnesses was for the jury, and I do not see how it can be said its verdict is against the weight of evidence, and especially when they both are corroborated in some respects by some of the defendant’s witnesses.
For these reasons I think the judgment appealed from should be affirmed.
Patterson, P. J., concurred.
Judgment and order reversed, new trial ordered, costs to appellant to abide event.