The plaintiff started to cross Seventy-Ninth street, from the south to the north side, at the corner of Second avenue, on March 8, 1893. It seems that the center of this cross walk was filled with water, and on each side of the cross walk there were ridges of ice. The plaintiff, in walking on the cross walk, put her left foot upon what appeared to be solid ground; and, when she stepped upon it, her foot sank in, covering her foot entirely with water. To avoid wetting the other foot, she stepped a little to the east with the right foot, upon what appeared to be a ridge of ice, that was hilly and ridgy. When she stepped upon this, her foot slipped, her ankle turned, and she fell sideways, and sustained the injury to recover for which the action is brought. So far as appears, the cross walk was perfectly safe, except that, in consequence of the melting snow, some water had gathered there. To avoid the water, she put her foot upon this ridge of ice in the street, and from that she slipped. The plaintiff swore that, in cleaning the cross walk, snow had been thrown on either side of it, and that was what made the ridge, varying in height from one to three feet; that it was a thawing day, and it was this snow which had been piled up “on the ice melting in the thaw, which filled the center of the cross walk with water”; that she was walking on the ice at the side of the crossing when the accident happened. It was proved that on the 8th day of March, 1893, the temperature was as high as 50 deg., which would cause the snow in the street to melt quite rapidly; that six inches of snow had fallen on the 4th of March, and one-half inch on the 7th of March, and that during the month of February the temperature was of the usual kind of winter weather in this latitude,—alternating with freezing and thawing; that the snow that fell on the 7th of March, and previous to that time, was melting all of the afternoon of the 7th, and all the morning of .the 8th. The undisputed evidence is that the accident was solely caused by slipping on this ice in the middle of the street; *644that, on crossing, the plaintiff voluntarily stepped upon it, to avoid putting her foot in the water; and that the snow that caused this ridge, the melting of which caused the water upon the cross walk, had fallen on the 4th and 7th of March, preceding the 8th of March, the day upon which the accident happened. It was proved on behalf of the defendant that during this month of March there was a great deal of snow, and that all of the street-cleaning force was engaged in keeping the snow off the cross walk, and that at the time of this accident the streets were full of ice and snow. It seems to me that there was absolutely no evidence here of any negligence on the part of the city of New York. The accident happened, not because of any unsafe condition of the side walk or cross walk, but because of an unusually heavy fall of snow, amounting on the 4tli of March to upwards of six inches, followed by another snowstorm on the 7th of March. The streets had become blocked with snow, and, with the warm weather on the 8th, the snow had commenced to melt, and caused pools of water in the streets. The defendant had endeavored .to clean the cross walks of snow, to make them safe for use; and, when the thaw came, there was naturally more or less water collected in these cross walks, from which the snow had been removed. To avoid stepping in this water, the plaintiff voluntarily stepped upon a ridge of snow, which, from the use of the streets, had been packed tight, and had become ice; and upon that she slipped and fell. There was nothing in the condition shown in this street which had any relation to the injury but what was common after every severe snowstorm in this climate, followed by warm weather, which caused the snow to thaw; and, unless we are prepared to hold that it was negligence on the part of the city not to clean evbry one of the streets of New York of snow within two or three days after a snowstorm, there is no evidence to show that the city neglected any duty which it was bound to perform. There is absolutely nothing-to show here that this cross walk was unsafe at the place selected by the plaintiff to cross. It is not suggested in which way the city could have prevented this injury, except by removing all of the snow and ice from the street as soon as it fell, and this is an absolute impossibility. We cannot affirm this judgment without holding that, in every case in which a person slips upon a ridge of snow in the street, the city is responsible for the injury, and that would make the city substantially an insurer of every one using the street, for every accident that would happen in consequence of snow or ice; and this is the first case of which I have knowledge in which a recovery has been sustained against a municipal corporation for slipping upon a ridge of ice off a cross walk in the middle of a street. I therefore dissent.
VAN BRUNT, P. J., concurs.