Browder v. City of Winston-Salem

*402 Barnhill, J. Tbe plaintiff bottoms ber case against tbe defendant corporation on tbe allegation that it negligently permitted “much of tbe rain, melted snow, and other waters that fell, formed on, or were collected on tbe roofs, bay windows, gutters, and other portions of tbe premises there maintained ... to fall and drain onto tbe public sidewalk and that the waters so draining and falling onto tbe public way frequently formed into ice, thereby unlawfully obstructing tbe use of tbe said sidewalk and rendering tbe same unsafe for pedestrian travel” and that it negligently permitted such condition to develop on tbe days immediately preceding ber injuries. There is testimony that at times water seeped from tbe gutters and eaves of tbe building and dripped on tbe sidewalk. Tbe record, however, is devoid of any evidence that such seepage occurred on tbe days preceding tbe accident complained of. There is no testimony that any water coming from tbe building appreciably increased tbe thickness or slipperiness of tbe condition formed by nature or in any wise enhanced tbe hazard thereof. Plaintiff testified that she slipped and fell. While she did not undertake to explain tbe cause, we may assume that it was due to tbe slipperiness of tbe icy layer of snow. Even so, slipping and falling alone is not sufficient to establish negligence. There must be some evidence that tbe defendant in fact was a party to tbe creation of tbe condition which caused ber fall. It is true there is evidence that on tbe morning of tbe 27th tbe “packed down” snow in front of tbe building was somewhat thicker than on tbe north side of tbe street and other exposed places. That is understandable, for it is a matter of common knowledge that snow and sleet on tbe north side of a building, or in low places, or in forests where it is sheltered from tbe sun will remain for days after tbe temperature has risen well above freezing. Frequently, it does not disappear until after a rain comes. S. v. Baldwin, 226 N.C. 295, 37 S.E. 2d 898; S. v. Vick, 213 N.C. 235, 195 S.E. 779. Certainly tbe mere circumstance of tbe relative thickness of tbe layer of packed snow in front of tbe building, under tbe circumstances here disclosed, will not justify tbe inference that water dripping from tbe building produced tbe condition. Even if it did, we may not say, on this record, that tbe added thickness enhanced tbe obvious hazard to pedestrians. For cases bearing on tbe liability of an abutting owner for injury resulting from tbe presence of ice and snow on tbe sidewalk see Anno. 34 A.L.R. 409. In its original answer tbe defendant city pleaded its ordinance requiring property owners to keep tbe sidewalk in front of their premises free of ice and snow and alleged that if it were negligent then its liability is *403 only secondary. Tbis section was stricken by order of the court and an amended answer was filed. The plaintiff sought to introduce this section in the original answer, and also the ordinance, as against the city, but not as against the defendant corporation. Both, on objection, were excluded and plaintiff excepted. Unquestionably the affirmative statement in the original answer, if pertinent and material, was admissible in evidence. Adams v. Utley, 87 N.C. 356; Winborne v. McMahan, 206 N.C. 30, 173 S.E. 278; Stansbury, N. C. Evidence, 380. But the allegation offered in no wise tends to establish negligence on the part of the city. It expressly denied negligence and merely sought the protection of the doctrine of primary and secondary liability in the event of an adverse verdict. The exception to the exclusion of the tendered paragraph of the original answer is without merit. Nor was there error in the exclusion of the ordinance. Neither its enactment nor its existence tends to prove negligence on the part of the city in failing to remove the sleet and snow from the sidewalk. Indeed, it tends only to show that the city had provided a way for the prompt removal thereof. The exclusion of the ordinance, if prejudicial, was harmful to the city rather than to the plaintiff. Calder v. Walla Walla, 33 P. 1054 (Wash.). The testimony tends to show that the defendant city had not removed all of the “sleety” snow from the sidewalks on the second morning after a general precipitation. There is no evidence that the condition in front of the apartment house was so exceptional in nature as to demand prior or preferential attention. This, in our opinion, is insufficient to warrant an inference of negligence such as would require the submission of issues to a jury. Hawkins v. City of N. Y., 66 N.Y.S. 623; Harrington v. Buffalo, 24 N.E. 186 (N.Y.); Swan v. Indiana, 89 A. 664 (Pa.); Zunz v. N. Y., 103 N.Y.S. 222; Byington v. Merrill, 88 N.W. 26 (Wisc.); Bailey v. Oil City, 157 A. 486 (Pa.); Holbert v. City of Philadelphia, 70 A. 746. The mere slipperiness of a sidewalk occasioned by smooth or level ice or snow, formed by nature, is not sufficient to charge the municipality with liability for an injury resulting therefrom where the walk itself is properly constructed and there is no such accumulation of ice and snow as to constitute an obstruction. Cresler v. Asheville, 134 N.C. 311; Anno. 13 A.L.R. 18; 80 A.L.R. 1154. As a general rule a municipality is not liable for injuries caused by the formation of ice and snow from natural causes where the sidewalk itself is properly constructed, Anno. 80 A.L.R. 1154, if there are no dangerous slopes or ridges and the ice or snow has not been permitted to *404 remain on the sidewalk so long that it has become so rough and uneven that it is difficult or dangerous for persons to pass over it. Anno. 80 A.L.R. 1156. Other authorities which discuss the liability of a municipality, under varying circumstances, for conditions caused by ice or snow may be found in Anno. 13 A.L.R. 18 and 80 A.L.R. 1151. Since we are of the opinion the plaintiff has failed to make out a case of negligence as against either defendant, we need not discuss or decide the contention that in any event the plaintiff was contributorily negligent. The judgment below is Affirmed.