APPEAL by the defendant, Richard A. Crozier, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Tompkins on the 12th day of May, 1911, upon the verdict of a jury for $1,502.74, rendered by direction of the court, and also from an order entered in said clerk's office on the same day, denying the defendant's motion for a new trial made upon the minutes.
David M. Dean, for the appellant.
Peter F. McAllister, for the respondent.
Bridget Marsh fell upon the snow and ice upon the sidewalk along the defendant's premises, and brought an action against the city of Ithaca to recover damages therefor and recovered judgment for $1,000 damages and $152.50 costs, April 6, 1908, and this action is brought to recover the same from the defendant, he having been notified by the city of the action and required to defend the same. In her complaint against the city she alleged that the defendant carelessly and negligently suffered, allowed and permitted water from a defective conductor to collect and freeze and accumulate ice and snow on the sidewalk, 'and negligently and carelessly allowed, suffered and permitted said ice and frozen snow to accumulate and remain for a long period of time, on and prior to the 28th day of January, 1907, on the sidewalk * * * at and near the northwest corner of said building owned by said Richard A. Crozier so as to become dangerous to persons passing along the same as they legally might. Said ice and snow having been beaten smooth and slippery which had been there for a long period of time previous, and the said sidewalk at said place was in an icy, slippery, dangerous and practically impassable condition, all of which said defendant had due notice and was well known to the officials, servants and agents of said defendant City, as plaintiff is informed and verily believes, and of
which defendant had or might have informed itself in time enough to make said sidewalk safe before the occurrence of the accident hereinafter mentioned.'
It does not appear in this case, except from the pleadings and the judgment, what was the actual issue litigated in the Marsh case, and whether the evidence tended to show a ground of liability other than from ice formed by water coming from Crozier's conductor. Upon the trial of this action the plaintiff proved that the conductor from defendant's building discharged its water upon a stone and then escaped across the sidewalk at the northeast corner of his building near an alleyway belonging to the city, which furnished the entrance for teams to some buildings next to the defendant, and proved by Bridget Marsh that as she was passing the northwest corner of Crozier's block she slipped and fell on the hard ice and broke her leg. She presented her claim against the city and recovered therefor.
It also appeared that where the water came from the conductor onto the sidewalk the ice was frozen for about five feet each side of the conductor pipe, being the thickest immediately in front of it and gradually sloping. It also appeared that at the time the whole of the walk along the Crozier building was covered with snow and ice. The ordinances of the city provided that no person should conduct from any building through any pipe, gutter or trough any water upon the sidewalk 'nor shall such water be conducted across any sidewalk, unless the same be made to run in a pipe or groove below the surface of the walk.'
The court denied the defendant's motion for a nonsuit. Thereupon defendant's counsel suggested that he wanted to present to the jury the question whether the injury was the result of ice formed from water coming from the pipe, or from causes or neglect of the city, or ice formed independent of acts of the defendant, or by the commingled acts, and stated that he would ask the court to charge the jury upon that subject, particularly if it was the commingled acts of the two and they could not tell positively which was the exact cause that the plaintiff cannot recover. He also suggested that they wished to raise a question as to the exact place where the accident took place.
The court remarked that after an examination of the judgment roll it was of the opinion that neither of the defenses suggested is available and that it would have to direct a verdict against the defendant.
'Defendant's Counsel: I offer to show that there was a groove or depression constructed in the sidewalk at the point where the water flowed from this eave-trough below the surface of the sidewalk by the stones being formed in a 'V' shape or trough to permit the water to cross the sidewalk, and I offer to show also, that the complainant, Bridget Marsh, slipped and fell at a point beyond of from four to six feet north of where the eave-trough was, and ask to go to the jury as to whether the injury was from the snow and ice from the eave-trough or from the snow and ice or the irregular surface caused by the track across the sidewalk, and ask to go to the jury upon all the issues in the case. Plaintiff's Counsel: We object to all the offers on the ground that the evidence would be incompetent, irrelevant and immaterial and not ...