Breuer v. Mataloni

Stuart, J. — Plaintiff brought this action against the Town of Ashton and Mr. and Mrs. Mataloni to recover damages for personal injuries she sustained in a fall on an icy public sidewalk in front of the Mataloni home. The trial court submitted the case to the jury which returned a verdict in favor of the town,' but awarded plaintiff damages from Mr. and Mrs. Mata-loni. They have appealed assigning as error the court’s failure to sustain their motion for directed verdict and the court’s failure to enter judgment in' their favor notwithstanding the verdict of the jury. For the purposes of this appeal, we will refer to the Matalohis as if they'were, the sole defendants. ‘ , The question presented is whether defendants owe a. duty to the general public to .keep the portion of a public sidewalk which crosses a-private residential driveway free and clear from snOw or ice which may accumulate there as a result of'the normal and usual use of such driveway., - > , -On February-3, 1963,.snow-had accumulated on the: ground *447 in -Ashton to a depth of about seven inches. No snow had fallen since the preceding’ Thursday,- January 31. ■ Defendants’, sidewalk -including, that portion which crossed-their driveway had been .cleared. The gravel driveway, had ,not. been shoveled. Plaintiff testified there was snow and ice. on the sidewalk the width of the driveway with ridges ;up to. one and onejialf inch high the width of car wheels. The parties acknowledge this condition resulted from the -use. of the driveway, by defendants’ one ear and the cars of .guests in their home, if any. Plaintiff, 77 years of age, slipped.and fell as she attempted,to crc>ss,,the driveway. - ' , Both parties concede this case is controlled by Franzen v. Dimock Gould & Co., 251 Iowa 742, 101 N.W.2d 4.- Im-that-oase recovery was- permitted -for personal injuries received when plaintiff -slipped and fell in accumulations of snow and me on-a public sidewalk wheré it was crossed by a driVeway - adjoining defendants’ commercial-establishment. Plaintiff relies-upon our holding-in that case-in', which we ¡held it. was f or', t-h'e ’-jury to determine whether, defendants’ negligence had created hazardous condition. In commenting‘on the evidence, we said.:- • “The evidence is that the entire wálk,- including--this -crossing, had been cleared of. snow soon after the heavy -falb'about twelve days before. The situation disclosed .by-Exhibit 1-was brought about by the trucks and cars of appellant, dts employees and customers and was .allowed .to -remain potentially dangerous'. The jury' could find, from the .evidence that- show 'and slush weré carried from appellant’s -parking-lot and. from the¡ stréet,. deposited on" this -public walk and left there to constitute-a hazard to pedéstrians; The picture is substantial evideneé that appellant and those'under, its control affirmatively caused and maintained an'artificial and.dangerous- condition which was the causé of plaintiff’s injuries.” 251 Iowa 742, 750, 101 N.W.2d 4, 9. - Defendants rely upon authorities cited in the opinion and argue thé dictum expressed therein clearly excludes the instant ease from the holding of the- Franzeri case. Ve .said:. ■ ! • ■ - “An abutting owner is not liable-to pedestrians who sustain injuries by -falling on snow-'or -ice which occurs naturally on - a public sidewalk,--nor is he:liable:-for injuries sustained.by-'reason *448 of the sidewalk being in a dangerous condition from ordinary-wear and tear or action of the elements. Mutzel v. Northwestern Bell Tel. Co., 247 Iowa 14, 72 N.W.2d 487, and cases cited. “We do not hold that the ordinary use of a private driveway in the ordinary manner may in all cases create a nuisance or legal hazard even though the natural surface of snow and ice thereon may be slightly changed. Whether or not a dangerous situation or nuisance is created thereby is a question for a jury to determine under proper instructions, as in this case, where, according to the jury’s verdict, snow and slush not originally there were deposited on the crossing in substantial amounts and made hazardous by vehicles of the defendant, its employees and customers. “If a private residential driveway across a public sidewalk were involved and if it were used as. such driveways are ordinarily used and no unusual or unnatural hazard were created other than necessarily accompanies normal use we would be disposed to hold otherwise. We are inclined to say that a slick or rough spot on a private driveway, resulting from, normal and natural use, where negligence is not involved, would not support a verdict for plaintiff. “The common law imposed no duty upon abutting property owners to keep the sidewalks in front of their premises free from ice and snow accumulated thereon in the natural way. Mutzel v. Northwestern Bell Tel. Co., supra; Bentson v. Berde’s Food Center, 231 Minn. 451, 44 N.W.2d 481, 22 A. L. R.2d 733, 736, 737. The same rule prevails in Iowa. Atkinson v. Sheriff Motor Co. and Case v. City of Sioux City, both supra.” Franzen v. Dimock Gould & Co., 251 Iowa 742, 747, 748, 101 N.W.2d 4, 8. We feel the facts here fall squarely within the dictum of the Franzen case which we have emphasized above. Abutting property owners owe no duty to the general public to keep that portion of a public sidewalk which crosses a private residential driveway free and clear of ice and snow which accumulates there from the ordinary and usual use of such driveway. This conclusion is in accord with the general rule stated in 63 C. J. S. 229, Municipal Corporations, section 862b (1) : • “Also, an abutting owner or occupant is not liable at com *449 mon law for injuries resulting from snow or ice coming on the sidewalk through natural causes, or where it accumulates through no wrongful act or omission on his part; nor is he bound to guard against the risk of accident by sprinkling ashes or using any other like precautions.” Many driveway cases are cited under this statement. See also the authorities reviewed in the dissenting opinion in the Franzen case, 251 Iowa 752, 101 N.W.2d 11. Plaintiff argues the instant ease does not come within the dictum because the evidence here establishes the ice and snow covered the width of the drive and was therefore more than a “slick or rough spot.” The principle involved is whether it accumulated as a result of normal and usual use of the'driveway rather than the size of the icy spot. Its application does not depend upon the size of the area involved. There is no suggestion here that the snow was deposited by other than the normal use of the driveway. The trial court erred in failing to direct a verdict in favor of the defendants and in failing to award them a judgment notwithstanding the verdict. The ease is therefore reversed. Costs are taxed to plaintiff except that defendants shall pay all costs of printing the record and appellants’ brief and argument in excess of $1.50 per page. — Reversed. All JuSTICKS concur.