Tire court charged the jury that if the plaintiff could have seen the ice by the exercise of his faculties, under ordinary circumstances, as a man of ordinary prudence would have exercised and seen, then he could uot recover. This ivas quite favorable enough to the defendants. And the facts did not show such undisputed evidence of contributory negligence as to have required the court to take this question from the jury. (Evans v. City of Utica, 69 N. Y., 166.)
The case last cited seems to pass only on the question of contributory negligence. The question as to what facts show negligence in the defendants does not seem to have been discussed or decided. In the present case there is no doubt that the sidewalk was in good condition, except as to the ice. It is plain, too, that the water coming from the snow which fell on the alley, and on the roai* of the lots, and also the water which came from the springs, would necessarily flow down the alley and across this sidewalk. It is a well known fact that in this climate the heat of the sun will often melt the snow in winter, when the temperature is such that the water thus produced will freeze at night, or even during the daytime in the shade. And, further, it is not always possible, by any ordinary means, to remove ice which has become frozen to a sidewalk firmly. It could not then be the duty of the defendants to prevent snow from melting, or water from running down hill, or ice from freezing on a freezing day. And, therefore, since they could not prevent these occurrences, all their duty, at the utmo.vt, would be to remove or remedy the evil after it had occurred ; to remove, or perhaps to cover with sand, or the like, the ice after- it had been formed.
Eat it is a well known principle, in regard to such matters, that a city must have notice of the alleged obstruction to its highways, either actual or constructive, through the long continuance of the obstruction. Now the plaintiff claims that this sidewalk had been, for much of the time during the winter, icy and dangerous in the manner described. But it must be observed that such ice was formed repeatedly, and wherever the circumstances above referred *170to existed. The removal of the ice by the defendants one day would not have prevented its formation the next, if the sun had melted the snow in the daytime and the night had been cold. And the plaintiff himself testifies that, previous to the night before the accident, the ice had been ti amped down — “ padded down ” — so that he says expressly that it was not slippery the day before ho was hurt. If it was not slippery the day before he was hurt, then no negligence of the defendants, prior to that time, caused the injury. The ice which caused his accident was formed the night before the accident occurred, and the defendants were not chargeable with notice of the slippery condition of a sidewalk at noon, which had not been slippery the day before. There is nothing to show that the place would not have been just as icy and dangerous, at the time of the accident, even if all the old ice had been removed the previous day. The plaintiff says that the ice where he fell formed the night before, and the water came from the spring which came down the alley. Now, whether this new ice should be formed on the old, tramped down, snow and ice which was not slippery, or whether it should be formed on the sidewalk itself, so far as appears, did not affect the plaintiff’s liab.lity to fall.
It may be said that the defendants ought to have prevented the water from coming down the sidewalk. But they had no control over this alley. It was private property owned and occupied by the plaintiff. And it is not shown that the defendants were bound to carry off tills water formed by the molting of snow in this alley or coming from the spring above.
The court., however, charged that it was for the jury to say whether i t was a reasonable time, and whether the officers of the city should have ascertained the formation of this ice between daylight and the time the accident occurred, about one o’clock. And, therefore, the negligence of the city was put by tlie court, not on the condition of the sidewalk, as it had existed previous to the night before the accident, but on its condition as caused that night, and on the neglect of the city to remedy the evil which then ar ;so.
Without attempting to lay down arule which shall apply to all cases, it is safe to say that the mere neglect to remove ice before one o’clock, r. M., which formed the night before, is not enough to make the oily liable.
*171The judgment and order should be reversed, and a new trial granted, costs to abide the event.
Present — Learxed, P. J., Bocees and BoardmáN, JJ.J udgmeut and order reversed ; new trial granted, costs to abide event.