Celia Penor, Appellant, v. The City of Glens Falls, Respondent

Celia Penor, Appellant, v. The City of Glens Falls, Respondent. Third Department, May 20, 1910. Municipal corporation — negligence — snow and ice — evidence. Where in an action against a city to recover for personal injuries, it appears that . for about two days after a heavy storm the snow was not removed from the sidewalk in front of a school building; that in the center of the walk it became packed by pedestrians into ridges four or five inches high, which met at right angles at the corner of the street; that this condition existed for about' seventeen days and after nearly all-the other sidewalks of the city were cleared, and . that plaintiff fell and was injured in trying to step over and avoid the ridge so formed at the corner of the street where the sidewalk sloped considerably toward the curb, it is error to nonsuit at the close of plaintiff’s case. Smith, P. J., and Houghton, J., dissented. Appeal by the plaintiff, Celia Penor, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Warren on the 4th day of November, 1909, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case on a trial at the Warren Trial Term. Francis L. Gamdey [Fred 'A. Brail of counsel], for the appellant. Henry W. Williams, for the respondent. [MAJORITY — Coohrane, J.:] Coohrane, J.: Plaintiff brings this action to recover damages for injuries sustained from a fall on one of the sidewalks of the defendant city. At the corner of South and West streets in said city is a school building. On January 4, 1908, there was a snow storm' of considerable magnitude. For about two days thereafter the snow was not removed from the sidewalk on either South or West street adjoining the school building. In the meantime pedestrians walking over the sidewalk packed the snow into a ridge approximately in the center of the sidewalk and along its entire length on both streets adjacent to the school building. These two ridges intersected at right angles at the corner of the streets. They were four or five inches high in the center and sloped gradually from their crown. At the particular place where plaintiff fell the flag sidewalk sloped four inchesin four feet toward the curb, making the place even more dangerous. This condition remained practically unchanged for seventeen days and until January twenty-first when plaintiff fell and was injured. There is evidence that the sidewalks in the city generally were free from snow on January twenty-first. Witnesses testified that they had slipped at this particular locality and had avoided it by taking other streets. The situation. thus presented was one not due to climatic conditions or such as were general throughout the city and was one which might easily have been obviated by the exercise of ■ reasonable care. Evidently those in charge of this public building did not exercise the same degree of care in respect to the sidewalks in front thereof as was exercised by the oxyners of private buildings generally throughout the city and the city authorities were remiss in permitting such a condition to continue for so long a time. Plaintiff was walking on South street beside the ridge and near to the school building because she says it was safer there, and reaching the intersection of the ridges at the street corner was obliged to cross one of them. Her testimony is as follo ws : “ I tried to- go over it. I had one foot over it and I was stepping'over very carefully and I slipped and fell; I liad one foot over the ridge; I was stepping over it attempting to bring the other foot over it. Q. You stepped over the ridge to the other side? A. .On the side of the ridge; I was stepping over. I was on the side of the ridge. I was' right on the lower side of it. Q. You stepped on the ridge ?. A. To the lower side of the ridge. • * * ; . My right foot slip.ped as I was stepping over. I think my right foot was over the ridge and when I rested down on the right foot it slipped. * * * I was bringing my left foot over; resting on the right foot with the left foot in the air and my right foot gave way,” It thus.clearly appears that plaintiff fell in an effort to avoid the ridge. It is not a fair inference from her testimony that she slipped and fell after-she had passed the ridge. She did not step on the crest of it but attempted to-step over it and in doing so fell. The evidence presented a case for the consideration o.f the jury as to whether the defendant was negligent in not having caused the removal of this ridge and whether the existence of the ridge caused plaintiff to fall and whether she exercised proper care in endeavoring to cross the same. It was, therefore, error to grant a nonsuit. The judgment must be reversed and a new trial granted, with costs to the appellant to abide the event. All concurred, except Smith, P. J., and Houghton, J., dissenting. Judgment reversed and new trial granted, with costs to appellant to abide event.