The plaintiff, on the night of the 7th of February, 1870, in walking up Congress street, on the north sidewalk thereof, in the city of Troy, slipped upon a patch of ice, fell and broke his leg. For this injury he brought this action against the city, and obtained a verdict for $1375.- A motion was made, upon the minutes of the judge, for a new trial, which was denied. Judgment was perfected upon the verdict, and the defendant appeals from the order denying a new trial, and from the judgment.
When .the plaintiff, rested, the defendant’s counsel *454moved for a nonsuit, on the ground that no negligence on the part of the defendant had been shown. Also, that the plaintiff' was guilty of contributory negligence. The motion was denied, and the defendant excepted. The motion was renewed, at the close of the evidence, on the same grounds. And also on the ground that, if any obstruction upon the sidewalk existed, it was shown to have been produced by the freezing of water on the night of the injury, of which the defendant had no notice before the occurrence of the injury. This motion was also denied, and the defendant excepted.-
The most that can be claimed by the plaintiff' in regard to the accumulation of ice upon the sidewalk is, that there was, at the place where he fell, a patch of glare ice, not extending across the walk, but,, so far as there is any evidence of its dimensions, of inconsiderable extent. The plaintiff testified, “it was a slippery sidewalk, at that point, where I fell,” which was between the center of the sidewalk and the curbstone, All the description his wife gave of it was, that the cause of his fall was the “icy sidewalk.” Elvers, the policeman, called by the plaintiff, testified that the sidewalk “ was considerably icy, for a number of inches, in some placesthat where the plaintiff slipped was near the center of the walk, and “there is where the ice was.” Hinsdale, the city commissioner, who was actively engaged in inspecting the streets, said he saw no accumulation of ice on the sidewalk, only in spots, where the bricks were worn, the water would settle and freeze. And Barron, the street inspector, testified that he was over this sidewalk three or four times a day, and found nothing but a little bit of ice on it, once in a while. There is no other evidence in the case, indicating its extent; and it stands uncontradicted that the ice upon which the plaintiff stepped and fell, was a distinct patch of ice, of an extent to be measured by inches, rather than feet, and'there is no proof that it extended across the sidewalk. '
*455How, the foundation of the plaintiff’s cause of action, if he has one, is, that this piece of ice was a dangerous obstruction to the passage of those using the sidewalk for that purpose, which the city was bound to remove; and the danger consisted in the liability of those who stepped upon it, to slip and fall.
The obstruction was, therefore, one to be avoided by those using the sidewalk, and seeing, or being able to see, the ice; and if it could readily be avoided, the failure to avoid it, by one using the sidewalk, and plainly seeing the obstruction, must be accounted negligence. If there was / danger in walking over this piece of ice, and the plaintiff voluntarily, and unnecessarily, undertook to walk over it, i when he could plainly see it, and easily avoid it, and fell and broke his leg, I do not see how he can meet the allegation that his own negligence contributed to the result, or : avoid the conclusion that he must therefore fail to recover / damages of the city. Volenti non fit injuria.
That he did see it, and not only so, but was warned of it by his wife, who was ahead of him, is undeniable. • He was not, therefore, in a situation to charge his injury to the default of the defendant, if the defendant was in default, and should have been nonsuited.
But, again, the defendant’s counsel requested the judge to charge the jury that “if, immediately previous to the accident, the plaintiff knew, or had noticed, that there was ice there, and then took the risk of passing over there safely, he cannot recover.” This was refused, and the defendant excepted.
This, I think, was clearly wrong. The refusal must, have gone upon the ground, that the only obligation resting upon the plaintiff was, not to avoid the danger by passing by the ice, without stepping upon it, but to use caution while walking over it. This, I think, is incorrect. If the ice presented" a dangerous obstruction which the defendant was bound to do away, by removal *456or some other means, so that it was negligence on its part to leave it on the sidewalk, it must follow that it was negligence on the part of the plaintiff, voluntarily and unnecessarily to venture upon this dangerous obstruction, however carefully he might attempt to carry himself •upon it. The duty of the passenger, in such cases, is, to avoid the obstruction, and_ not to encounter its dangers. 1 This we held in Braffin v. The Village of Lansinghurgh, recently decided by this general term. See also Butterfield v. Forrester, (11 Fast, 60,) cited in the above case.
[Third Department, General Term, at Albany, January 2, 1872.The judgment and order appealed from must be reversed, and a new trial granted, with costs to abide the event.
Miller, P. J., and Potter and Parker, Justices.