#### RODRIGUES v. PRESIDENT, ETC., OF VILLAGE OF OSSINING.

(Supreme Court, Appellate Division, Second Department.

March 2, 1906.)

Municipal Corporations—Torts—Defects in Sidewalks—Negligence—Evidence.

In an action for personal injuries, evidence that the plaintiff slipped on a sloping stone in the sidewall; by reason of a light coating of snow, and caught her foot in the next stone projecting up about half an inch, was insufficient to show negligence in the maintenance of the sidewalk.

[Ed. Note.—For cases in point, see vol. 86, Cent. Dig. Municipal Corporations, § 1739.]

Appeal from Westchester County Court.

Action by Albertina Rodrigues against the president and trustees of the village of Ossining. From a judgment in favor of plaintiff, and from an order denying a new trial, defendants appeal.

Reversed.

*743Argued before JENKS, HOOKER, GAYNOR, RICH, and MILLER, JJ. ■

Frank L. Young, for appellants.

Pierre Reynolds, for respondent.

HOOKER, J.

The plaintiff, a woman of 71 years of age, has recovered a verdict against the defendants for injuries she sustained be-, cause of the alleged negligent maintenance by defendants of a sidewalk in Spring street in the village of Ossining. At the time of the accident there were two grades within one block on that street; the sidewalk along the south side of the block being of a higher grade than that' along the north end. These two grades were connected by a sloping flagstone *2*feet 6 inches long in the direction of the length of the street; the north end of the stone being 2^-2 inches below the south end. The flagstone on the lower grade next-adjoining the sloping stone on the north was raised above the latter, so that the south end of that flagstone protruded upwards at the joint with the sloping stone one-half of an inch.' At about 8 o’clock in the evening the plaintiff, walking northerly, approached this sloping stone. She wore rubber shoes and carried an umbrella. The sidewalk was covered with snow, from a sixteenth to an eighth of an inch in thickness, that had fallen during the day. The place was not well lighted.

That branch of the case which dealt with the plaintiff’s contributory negligence was correctly submitted to the jury, and with their verdict we may not interfere, so far as that question is concerned. The constructive notice to the defendants was amply shown. But we feel that the verdict is not to be sustained upon the question of the defendants’ negligence. At the close of the plaintiff’s case the defendants moved for a nonsuit, on the ground that the evidence failed to establish any negligence on their part, and an exception was taken to its denial. The motion was renewed at the close of all the evidence. It was denied, and defendants excepted.

There seemed to be no controversy at the trial that the mere fact that the snow existed on the sidewalk, by which it was made slippery, did not render the defendants liable. Although there was evidence in the case tending to show that others had slipped and fallen on this same-stone before the trial, and when the ground was free from snow, we are of the opinion that the evidence negatives the conclusion that the snow was hot the cause of the unfortunate accident. The plaintiff’s description of the exact way in which she was hurt is meagre, and does not seem to be sufficient to furnish a clear idea in that regard. She says, that she came to this stone and slipped. She says:

> “I slipped with the foot, and my foot came against something, and I fell and kicked it, and it threw-me back.”

It is quite evident that as her foot was planted upon the sloping stone she sl’pped downward, until it" came into contact with the stone next adjoining on the north, which rose above the lower end of the slanting stone half an inch at the joint, and it must be that this riser is what caught her foot and threw her. Had the plaintiff not slipped on the *744slanting stone, it is unreasonable to suppose she would have met ány injury. The difference in grade of half an inch between the northerly end of the sloping stone and the southerly end of the stone immediately adjoining it was so slight that we believe no careful or prudent man would reasonably anticipate danger' from its existence. The uneven-. ness, of-the walk at the precise place where the plaintiff’s slipping foot was caught was insignificant, and the facts, so far as they bear upon this point, are much more strongly in favor of the defendants than the facts which were considered in the case of Beltz v. City of Yonkers, 148 N. Y. 67, 42 N. E. 401. There the depression existed in the middle of a flag sidewalk, of a depth of the thickness of the surrounding flag, caused by the removal of a small piece of broken stone. The depth of the hole was about 2Já inches, and the surface area was about 2 feet 2 inches in length by 7J4 inches in width. The alleged fault of the sidewalk in the present case is that one flagging projected half an inch above another across the width of so much of the sidewalk as was paved; and upon this branch of the case the decision in Beltz v. City of Yonkers, supra, must control in defendants’ favor.

Both parties argued to considerable extent in their briefs in respect to'the sloping character of the stone, and respondent seems to hold that the defendant was negligent in allowing this sloping stone to exist as it did. As we read tiie evidence, this question is not important, for this reason: had the plaintiff not slipped, it is not to be supposed that she would have caught her foot against the riser and fallen, and her own evidence leads to the belief that it was the snow and not the sloping stone that caused her in the first place to slip. She says:

> . “I suppose it was the snow that caused me to slip on that stone.”

The case was tried on the theory, however, that, if the snow caused the injury, the defendants were not liable; and that is doubtless the law. Buck V. Village of Glens Falls, 4 App. Div. 323, 38 N. Y. Supp. 582; McCarty v. City of Lockport, 13 App. Div. 494, 43 N. Y. Supp. 693. This plaintiff would not have fallen if she had not first slipped, and she herself says that the slipping was due to the snow.

Judgment and order reversed, and new trial ordered.

Judgment and order reversed, and new trial ordered, with costs. All concur.