Smith v. City of New York

Per Curiam.

The plaintiff was injured on January 1, 1948, at 6:00 p.m. by falling on an accumulation of snow and ice on a sidewalk on West 42nd Street, New York City. This was some 135 hours after the cessation of the blizzard of December 26-27, 1947. The case with respect to the lapse of time differs from Yonki v. City of New York (276 App. Div. 407) where the accident occurred 60 hours after the same storm, and Rapoport v. City of New York (281 App. Div. 33) where the *496injury was sustained 90 hours after the storm. The passage of almost six days, the rough and ridgy condition of the snow and ice and the prominence of the thoroughfare would seem to be sufficient to create an issue of fact as to the negligence of the municipality in failing to clean the sidewalk.

Defendant rested without proof, but offered to show the efforts of the city in the interim after the storm in attempting to clean snow from the city streets. The trial court did not reject this proof, in fact said it would take cognizance of it, but called attention that the site of the present accident was on a sidewalk and not on the street itself. In spite of this specific suggestion by the trial court, the city immediately rested its proof and made no further offer whatever to show what efforts, if any, it made in the locality in question or anywhere else in the city to remove the snow from the sidewalks as distinguished from streets or roadways or to cause the owners to clean such sidewalks during the five and a half days that intervened after the end of the snowfall and before the accident.

The city asserts that it is not liable because it is impossible to tell whether the plaintiff was injured from a condition resulting from the December 26th-27th storm or from an additional hazard caused by freezing rain which was falling at the time of the accident. It invokes the rule of law that no liability arises where the proof merely shows that the damage was occasioned by one of two causes for one of which the defendant would not be responsible.

The city calls attention to the fact that that rule has been applied where there is a second and recent fall of snow on top of an earlier one and the cause of injury may be the snow which fell’ on the second rather than the first occasion. Here, however, there was no new snow and there was no testimony that the falling rain had added materially to the hazard caused by the rough ridgy snow in which there were many high and low spots.

Unlike the case of Taylor v. City of Yonkers (105 N. Y. 202) where the freezing weather covered everything with a film of ice making cleared sidewalks just as dangerous as those not cleaned, the proof here would warrant a finding that cleaned sidewalks were less dangerous for the plaintiff had negotiated them safely. Although the witnesses described the cleaned sidewalks as slippery, they also said they were passable when clear.

Even if we assume that the rain may have contributed to the hazard to some degree, we think the case was one where *497the accumulated snow might be found to be a concurrent cause. In Ring v. City of Cohoes (77 N. Y. 83, 88) it was said: “ When two causes combine to produce an injury to a traveler upon a highway, both of which are in their nature proximate — the one being a culpable defect in the highway, and the other some occurrence for which neither party is responsible — the municipality is liable, provided the injury would not have been sustained but for such defect ”. (See, also, Foley v. State of New York, 294 N. Y. 275, 280.) The learned trier of the facts specifically found that the negligence of the city in failing to remove the accumulation of snow from the sidewalk caused the injuries.

The evidence here would support a finding by the trial court that the accumulated snow created an obstruction or dangerous condition without the presence of which the accident would not have happened.

The judgment should be affirmed.