#### Ann Keane, Resp’t, *v.*The Village of Waterford, App’lt.

*(Supreme Court, General Term, Third Department,*

*Filed February*4, *1890.)*

Villages—Negligence—Snow and ice.

The defendant’s charter, chap. 243, Laws of 1859, makes its trustees commissioners of highways. The action was brought to recover damages for a fall upon an icy sidewalk. There was a heavy fall of snow on January 19, and during the four succeeding days only three-tenths of one inch fell. During all this period the mercury was very near, when not below, the freezing point. The piazza of a hotel projected over and occupied the sidewalk four feet; the eaves of its roof projected eight inches more. The remaining part of the sidewalk was less than eight feet wide. A ridge of ice had formed about the middle of the sidewalk, and about a foot from the edge of the piazza floor. The plaintiff, by her evidence, claimed this ridge had existed some time, at least since the storm of the 19th,_ and that it was caused by that snow and former ones. The defendant claimed that it was caused in part by snow and in part by drip from the eaves of the piazza, and that for the latter cause the village was not liable. The court *341charged that if caused solely by the drip the village was not liable, nor if caused by snow later than the 19th, nor if caused by new ice formed upon an old snow or ice ridge. *Held,*that, with these instructions, the plaintiff was entitled to go to the jury, there being evidence from which the jury might say that the ridge was caused by the snow of the 19th, and that the village was negligent in not removing it in four days.

Appeal from a judgment in favor of the plaintiff, entered upon a verdict upon the trial at the Saratoga circuit.

The action was to recover damages for injuries resulting from plaintiff’s fall upon an icy sidewalk in the village of Waterford.

The plaintiff was walking upon the sidewalk on the north side of Broad street about seven o’clock in the evening, when she suddenly slipped upon the ice, fell, and received serious injuries. The place where she fell was in front of a hotel kept by one Worthington. The floor of the piazza of the hotel projected over the sidewalk four feet, and the eaves of the roof of the piazza projected eight to ten inches further than the floor. The sidewalk from the piazza floor to the curbstone was seven and a half feet wide. It was entirely covered with ice, but under the eaves of the roof of the piazza, and about a foot from the edge of the piazza floor, the ice was the thickest, and from there sloped down to the curbstone, where the ice was thinner; the thickest part forming a ridge, upon which plaintiff fell The testimony tended to show that on January 19th snow fell to the depth of nearly eight inches, none on the 20th, two-tenths of an inch on the 21st; one-tenth on the 22d, and none on the 23d, the day of the injury. The thermometer ranged from 30 to 13 on the 19th, and during the following days was below the freezing point, except on the 21st, when its minimum was 26, and its maximum 36, and on the 22d, when its minimum was 23, and its maximum 35. On the day of the accident, the minimum was 3, and the maximum 28. There was some testimony tending to show that the ridge was formed by the treading down of the snow; that it was glazed over by the rain, or by the drip from the piazza roof; that it was hard to remove it; and that the snow had been shoveled from both sides of it

*N. C Moak,*for app’lt; *J. F. Crawford,*for resp’t.

Lardos, J.

We cannot say, as a matter of law, that the plaintiff was not entitled to recover. The court, in response to the various requests of the defendant, charged that the plaintiff could not recover if she slipped upon ice formed from water dripping from the melting snow on the piazza roof, or from snow or sleet which fell on the 21st, 22d or 23d of January, or from new ice upon an old snow or ice ridge. The defendant made twenty-seven requests. As we understand them and the responses to them, the defendant was given the benefit of every aspect of the evidence which could, upon any construction of it, bring the case within the rules of exemption from liability declared in the *Taylor, Kinney, Kaveny, Tobey, Foley, Gram, Muller,*and other recent cases. 105 N. Y., 202; 7 N. Y. State Rep., 332; 108 N. Y., 567; 14 N. Y. State Rep., 15; 108 N. Y., 571; 14 N. Y. State Rep., 18; 49 Hun, 318; 17 N.Y. State Rep., 454; 45 Hun, 396; 10 N. Y. *342State Rep., 140; 20 N. Y. State Rep., 370; 32 Hun, 24; S. C. 105 N. Y., 668; 8 N. Y. State Rep., 910.

The recovery seems to be based, upon the finding by the jury, that the ridge in question was formed by the snow which fell on the 19th of January, or earlier, and that the defendant was negligent in not causing it to be removed prior to the evening of the: 23d of January.

The defendant could wait a reasonable time for the hotel owner to remove the ridge, and its duty to remove it would not attach, until that reasonable time had expired. Whether four full days', under the circumstances would be a reasonable time during which the defendant could safely wait, was a question for the jury. *Kunz v. City of Troy,*104 N. Y., 344; 5 N. Y. State Rep., 642.

The defendant’s twenty-sixth request was, “ That if the jury are unable to determine whether this ridge was caused by dropping from the eaves or by snow which had been allowed to accumulate on the walk, plaintiff cannot recover.”

The court: “I charge, as T have charged, that if the accumulation resulted from drips from the eaves, plaintiff cannot recover. If it resulted from an accumulation of snow on the walk, the-jury might find that it was negligence on the part of the corporation.”

Defendant excepted to the refusal, and to the instruction.

The language used by the court covered in effect the terms of the request. For if the jury could not hold the defendant responsible for the drip from the roof, and could only hold it. responsible for negligence with respect to the snow, they were-bound to find that the former did not, and that the latter did cause the injury, in order to render a verdict against the defendant. Such instruction excluded the idea of confounding the two causes, and holding the defendant liable if they were unable to-determine whether the injury resulted from one cause or the other. The court is not obliged to use the precise terms suggested by counsel. The jury must have understood that the plaintiff must fail unless the accident was due to the cause for which defendant was responsible, and this plainly uses the rule which the defendant had in view. *Searles*v. *Manhattan R. Co.,.*101 N. Y., 661.

The defendant requested the court to charge, “ That there is no evidence that plaintiff’s fall was not caused by ice which had formed and frozen on the sidewalk on the 19th, 20th, 21st and 22nd of January; from snow and sleet which had fallen on the 19th, 21st and 22nd of January.” The court refused and defendant excepted.

The refusal was proper because the fact assumed was not entirely clear. The effect of the refusal was to leave the question to-the jury.

Judgment affirmed, with costs.

Learned, P. J., and Fish, J., concur.