The Trial Justice ruled that no cause of action had been made out since (1) there was no proof of “any substantial defect” in the roadway and, (2) “even assuming that there had been a depression, a substantial depression, and that condition constituted a defect,” the plaintiff failed to show that there was an accumulation of ice for a sufficient period of time to give the City an opportunity to remove the ice and make the roadway safe for travelers thereon” (377-378).

The Facts

(1)

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* * fell

On January 7, 1954, at between 8 and 8:30 P.M., the plaintiff, then 68 years of age "slipped and on the ice” which had accumulated in a patch measuring “[j]ust about three feet” off the southeast corner of the Grand Concourse and Burnside Avenue (63-64). She said that the weather, on the evening of her accident, was “dry and clear” (55). A United States Department of Commerce “Weather Report,” for the month of January, in evidence as Plaintiff's Exhibit 7 showed (p. 1) that precipitation listed as snow or sleet and rain fell from 7 A.M. to 2 P.M. on the previous day, January 6, 1954.

The plaintiff had been returning from Kingsbridge Road on the evening of her accident via the Concourse bus (56). She debarked from the bus at the bus stop located on the northwest corner of the Grand Concourse and Burnside Avenue (57). When she crossed the Grand Concourse she noticed that the street was dry and there was no ice in sight (58). She stepped up on the east sidewalk and when the light changed in her favor she started to cross the intersecting street (59-61). Burnside Avenue, which crosses the Grand Concourse, has an island in the middle of the street containing a sidewalk (117-118). As she approached the island she was "walking straight” but she didn't "look down on the ground because it wasn't slippery or something” (119). However, she was unable to continue straight across since a car which had stopped for a light blocked her path in the crosswalk (61-62). When she walked in front of the car on the Concourse the accident "happened right there” (62).

According to her testimony she was “about a little less than a foot” from the center island of Burnside Avenue on the Grand Concourse when she fell (65, 63). The letter “y” and the arrow on Plaintiff's Exhibits 2 and 3, respectively, are meant to designate the place where the accident took place (99). She injured her left leg and indicated that it was fractured in four places (70, 78). She said the ice patch at that point was about three feet wide by five feet long (64). Patrolman Joseph Beam, the reporting officer, called by the plaintiff, said he noticed an ice patch about a foot and a half from the curb which was oval shaped and about 12 by 18 inches (155-157). He did not recall seeing a hollow or a depression in the area, and if he did, he would have reported such a condition to the proper authorities (158, 174). Doctor Edward Wagner, a neighbor of the plaintiff, said he saw “about five feet or so of ice” and then said the patch was “about eight feet, maybe ten feet, as I noticed it” (211, 240).

(2)

The plaintiff called Carl V. Johnson, a licensed land surveyor, who testified that he examined the roadway of the Grand Concourse, about a week before the trial, in the company of Mrs. Rabin who pointed out the area where she fell (312, 316). Then, according to his testimony, he surveyed an area of the Concourse roadway adjacent to the curb and immediately south of the west bound lane of Burnside Avenue, which area was 18 feet long, north and south and 8 feet wide, east and west (323). Elevations were taken with a surveyor's transit and leveling rod and measured at some forty points in the area, each of which was identified by a circle enclosing a cross, in photographs in evidence (Pltf's Exhs. 9 and 14, 326-327). From a study of these elevations, the witness was "able to determine that there is a depressed area of pavement at the point” which, according to his measurements, was “eighteen foot long and eight foot wide” (328-329). The witness went on to say that as a result “the pavement is sloped and drains toward the curb from the roadway and from the sidewalk” (329-330). It was his testimony that “any precipitation on the roadway pavement runs off to the curb along the hack stand” (330). The net result is that water accumulates in the depressed area "approximately five-eighths of an inch deep” (331).

The witness said he observed no provision for drains or catch basins in the area (348, 333). He was permitted to testify that because of the depressed area, the pavement was improperly graded (341). On cross examination, however, he conceded that the slope on the Grand Concourse was the normal construction of all City streets (362-363). He still maintained that the condition described was “not normal” (363).

The plaintiff, however, had admitted on cross examination that there were sewers on the southeast corner of Burnside Avenue and the Grand Concourse, on the Grand Concourse, slightly south of Burnside Avenue, on the Grand Concourse five or six feet south of the apex of the southeast corner of the Grand Concourse and Burnside Avenue and on the northeast corner of the Grand Concourse and Burnside Avenue in front of the Elks Building (146, 148, 149-150, 150-151).

Plaintiff's two remaining witnesses, both cab drivers, testified that the area on the southeast corner of the Grand Concourse and Burnside Avenue in the area of the hack stand, floods every time there is a rain and sometimes freezes (252, 293). On cross examination one cab driver conceded that there are many areas of the City streets where rain accumulates during a storm (305-306).

ARGUMENT

The complaint was properly dismissed (1) for failure to establish any dangerous street condition or actionable negligence, and (2) in the complete absence of any proof that the defendant had actual or constructive notice of such condition.

(1)

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It is a well established principle of law in this state that the duty imposed on a municipality to remedy street defects is limited to "guarding against such dangers as can or ought to be anticipated or foreseen in the exercise of reasonable prudence and care

The Court of Appeals opinion by Haight, J. in Hamilton v. City of Buffalo, 173 N.Y. 72 (1903), which established this doctrine, said (p. 75) that “when an accident happens by reason of some slight defect from which danger was not reasonably to be anticipated as likely to happen, it is not chargeable with negligence.” Equally well established is the rule of law that a municipality is not responsible for injuries attributed to a dangerous or unsafe street or sidewalk condition, unless it had actual or constructive notice of the condition alleged. Ehret v. Village of Scarsdale, 269 N.Y. 198 (1935); Greiner v. City of Syracuse, 228 App. Div. 566 (4th Dept., 1930), aff’d 256 N.Y. 688 (1931); Orser v. City of New York, 193 N.Y. 537 (1908); Clemmons v. Cominskey, 1 AD 2d 933 (4th Dept., 1956), aff'd 2 NY 2d 958 (1957); Farrell v. City of New York, 113 App. Div. 687 (2nd Dept., 1906).

(2)

In the case at bar, since the action was dismissed at the close of plaintiff's case, she is entitled to the most favorable construction of the evidence that the testimony will warrant. Applying that test, plaintiff's testimony and that of her witness, showed that she slipped and fell on a patch of ice in the roadway of the Grand Concourse, while she was attempting to cross Burnside Avenue, an intersecting street. The testimony presented showed conclusively that the plantiiff fell outside the boundary of the Burnside Avenue crosswalk and, in fact, while walking in the bed of the Grand Concourse, approaching the center island of the intersecting street. The evidence also demonstrated beyond any possibility of doubt that the patch of ice was the sufficient certain and operating cause of her fall. No other explanation is needed to account for what occurred and indeed none was offered that anything other than the ice patch caused the accident on the evening in question. On this appeal, plaintiff's counsel concedes at the outset (App. Br., p. 8) that “the depression” in the bed of the Grand Concourse, adjacent to the center island“did not directly cause plaintiff to slip.” Nevertheless, he argues (id., pp. 8-12) under Point I, that the defendant's liability for the patch of ice could be predicated on testimony showing that it permitted "excessive amounts of water to accumulate and freeze over at this place.” In making this argument counsel assumes in the same breath, that the ice formation was “not as a direct result of the snowfall* ending approximately 28 hours prior to the happening of the accident.”

Under these circumstances, we submit that there is not