Smith v. City of Yankton

WHITING, J. This action was instituted by the plaintiff to recover damages for injuries alleged to have been sustained by her in slipping and falling on one of defendant’s crosswalks. Verdict and judgment being in favor of the plaintiff, the defendant has appealed. It is disclosed by the evidence: That the city, some six or more years prior to the accident, caused to be constructed a wooden approach from the cement sidewalk on Douglas avenue to the stone crossing across Fifth street; that the wooden approach is 7 feet 5 inches in length and descends from the end of the stone crosswalk southward to the cement sidewalk and is 5 feet 11 inches in width on the north end and 7 feet and 9 inches in width at the south end; that the north end of the incline is io$4 inches higher than the south end; that the stone crosswalk is about 4 feet wide, and the cement sidewalk is 6 feet wide; that the north end of the approach extends about 2 feet west of. the west edge of the stone crossing, and the south end of the.approach extends nearly 3J4 feet east of the east edge of the cement side — 356 — walk;- that there were ño'cleats or boards nailed across the approach that this' approach had remained'in 'this 'condition since its construction; that' some three days prior to the accident, it rainéd, snowed and sleeted, and by freezing ¿11 the sidewalks in the city 'became covered with smooth, slippery ice. The plaintiff on Christmas Day,11902, in going to church/ passed over a route not' the usual route between her honié and the church, and in so doing passed over three different streets, but in’ returning from church, at about the noon hour, she passed south on the west side of Douglas avenue, the same being the usual route between the church and her home, and she came to the approach above described. Her attention was called by a companion to the fact that said approach was dangerous and slippery, and she saw and knew its condition before attempting to pass such decline. Thinking she could pass down the same safely by being careful, and attempting so to do, she slipped' and fell, sustaining an injury, for which this action is brought. It Is the contention of the plaintiff that the defendant was negligent in constructing' said incline on’the slant on which it was constructed, and that it was also negligent in that it omitted to cause any cleats or cross-boards to be put upon such approach. It is also contended that the defendant was negligent in not causing -the walks -to be cleaned and in permitting the same to become and remain slippery from sleet, snow, and rain. This last claim of negligence was eliminated upon the tidal by''the charge of the court to the jury, wherein it instructed them as follows: “With reference to sudden storms and to the formation of thin and slippery ice upon public streets and sidewalks, the rule of law is that a municipal -corporation is not liable for accidents resulting from that sort of ■ conditions, because it would be simply impossible for any city to .prevent the existence of conditions of that kind. * * * Whether or not the city was liable' for allowing icé or snow to remain upon this side-walk is ■ not before you. ’ It is not in this case, for the simple reason that, before a city can be held liablé for negligence in failing to remove sno-w arid icé from its sidewalk, softie notice of'the unsafe condition';of the wáík, resulting from the snow and ice upon it, must be shown to have been given to- the — 357 — city. * * * There is no.evidence here to show that that condition, .so far .as the snow and ice were concerned, had existed for a sufficient length of time to show that the city had implied knowledge of it, and possibly the evidence is not sufficient to warrant a finding .that the city would be guilty of negligence, so far as that alone is) concerned, even if they had notice of it.” It is contended by the appellant: First. That the city was not guilty of any negligence in the construction of the walk or in .maintaining it in the condition in which it existed, as it does not affirmatively appear that there was any defect in the .walk or in the ends thereof, or that the approach was not properly constructed or was out of repair, or that there was any lateral pitch to the incline. Second. That, it appearing from the instructions of the court that the city was not liable for .any injury sustained by the plaintiff by the mere slippery condition of the sidewalk occasioned by the freezing of the sleet, rain, and snow, a verdict could only .be found against the city upon the plaintiffs showing that the accident was causesd solely by the defective walk. That there was no evidence warranting the jury in finding that the injury was caused by any defect in the walk, but that the evidence clearly shows that the injury resulting to the plaintiff was caused entirely by the slippery condition of the walk by'reason of. the snow and ice thereon, and that therefore the court should have .granted defendant’s motion for a direction of a verdict in its favor at the •close of plaintiffs evidence. Third. That the court erred in certain parts of its charge to the jury in which it charged them that the sidewalks of a city must, be constructed and maintained with .reference to the.climatic conditions that .may. occur, and also -in .various pther .parts, of its charg.e specified by the counsel for the appellant. It is further contended.that the c.ourt erred in refusing to give to the jury certain, instructions requested on the part of the .appellant. Fourth. That, if. there was. any defect.in the sqid approach, it was in the original construction of such. approach, and the error was in the judgment of the members of the,city,council ..in adopting the plans for walks and grades, md'- that, therefore the ..corporation.cannot be hol.den., ^ifthl' That,.the accident, resulted ‘in part from the contributory,-negligence.;pf the, plaintiff.. ; . — 358 — It is insisted on the part of the respondent that the motion to direct a verdict in favor of the defendant was properly denied for the reason that the question of negligence on the part of the city, either in the construction or maintenance of the walk, was purely a question for the jury, and that it was for the jury to say whether .or not there was negligence on the part of the city in con-, structing a walk such as the one in controversy, and 'especially in omitting to nail cleats thereon. It is further insisted on the part of the respondent that, while the city was not liable for the accident or injury caused solely by the slippery condition of the walk, yet that it was competent for the pliantiff to give evidence upon the subject of its slippery condition, and for the jury to consider that condition in connection with any defects that it might find in the construction or maintenance of the walk itself, independent of the ice or snow thereon. As regards the fourth contention of appellant, as above noted, it i* only necessary to note that there is nothing in the evidence tending to show that any general plan for the grading of the street and constructing of the walks had ever been adopted by said corporation, and that the approach in question was a part of such a plan, so that we do not feel it necessary (to pass upon the question as to whether or not a municipality could be holden for damages flowing from an accident caused by a defect in plans adopted by the proper officers of such .corporation. A careful consideration of the first and second contentions of the appellant show that the determination of the same would be controlled entirely by the determination of the third matter complained of, to wit, the determination of whether the court erred in the instructions complained of, and of whether it erred in refusing to give the instructions asked for. If the court was correct in the instructions it gave and in its refusing to instruct as requested, then the appellant is wrong in his first and second contention. It therefore becomes necessary for us to consider only the instructions given and those refused. The instructions complained of, which are to be found separated one paragraph from another and mingled with the other charges given by the court, are as follows; — 359 — “It is the duty of the city to so construct its sidewalks as that they may be reasonably safe for the use of pedestrians passing over them, under all ordinary climatic conditions which exist in this country, in this latitude.” “But that, under the usual and ordinary conditions which prevail throughout the year, those sidewalks shall be reasonably safe for the use of pedestrians.” “A sidewalk must be so constructed as to be reasonably safe under those ordinary and usual prevailing conditions of weather.” “Was constructed so that it would be reasonably safe for persons traveling over it under the usual and ordinary climatic conditions existing here.” “If you bid that the walk was properly constructed, so as to be reasonably safe for travel, then, as you will observe, the walk would assume the same character, so far as this case is concerned, ais the other walks of the city which may have been properly con^ structed, and then the rule with reference to thin ice would prevent a fecovery where nothing but thin slippery ice is shown to have existed.” “If there was a faulty construction in this sidewalk at this point, and if the sidewalk was so constructed as that under ordinary and usual climatic conditions it was unsafe for persons traveling over it,, then the city was negligent in so constructing it.” The instructions which are requested and refused are as follows : “'You are instructed that the evidence 'in this case shows that there was a coating of ice on the slanting sidewalk in question, which ice had been recently formed. The city is not required to remove such ice from its walks, and its failure to do so would not in law constitute negligence. “You are instructed that where there is a coating of ice, on the sidewalk, caused by the rain or sleet freezing thereon, such city is not negligent in failing to remove such coating of ice. “You are instructed that if you find the injury sustained by the plaintiff was produced by two causes, namely, the slant of the walk in question and a coating of ice thereon, the latter being a cause for which no one was responsible, the plaintiff cannot re — 360 — .cover unless she has shown by a preponderance of the evidence that the slant of the walk was the real cause of the injury. Neither can a recovery be had if it was equally as probable that the injury came from the one cause as from the other. . “You are instructed that to render the city liable for the injury to the plaintiff by a defective construction of the walk, such defect must have been the sole efficient cause ¡of the injury; and, if you believe from the evidence that this accident to the plaintiff was causd by the recent formation of ice on such slanting walk, then the defendant would not be liable, and your verdict should be for the defendant. “You are instructed that if there be two efficient, independent, proximate causes of the injury, .the primary cause being one for which the city is not responsible, and the other being:a defect in the construction of the sidewlak, then such injury cannot be said to have been received through such defect, and the city is not liable. “You must determine in this case what was the primary and direct cause of this injury. If you believe that the ice on such slanting walk was the primary and direct cause of the accident, and that the slanting of the walk was only a condition or a remote cause for such injury, then the defendant would not be liable in this action.” The appellant claims that the instructions given as noted above required too high a degree of care on the part of the municipality, that all that is required from such municipality is that the walks be made reasonably safe, but that a city need not construct its walks so as to be reasonably safe under all climatic conditions; and appellant seems to consider the court inconsistent in holding the city (not responsible for its failure to, remove slippery ice, and at the same time requiring it to provide' against such climatic conditions .in the construction of its walks. We. fail to see any inconsistency in such a position. . The municipality is not liable on account of• dangerous places forming through, some storm, where the cause; of the danger is not the condition of the walk prior to •■such storm, and'such "municipality, only becomes liable undei the •above, circumstances-:when,. after actual notice- of the dangerous — 361 — condition, .or lapse of such time as will cause notice to be imputed to it, it allows the dangerous .condition to remain, so, that in this case, unless the slant of this approach or the manner of its construction showed negligence in such construction, which negligence consisted in not anticipating and providing against a condition, which, according to natural laws, was certain to arise, the defendant would not be liable herein. It is the contention of the appellant that the municipality in erecting this approach was not bound to take into consideration climatic conditions. There seems to be great conflict in the authorities, but it would seem that a few illustrations will show that the trial court was right, and that its instructions have reason and common sense to support them. A person might be guilty of no negligence in erecting a structure in a dense wood where the wind could never reach the same, and yet the. same method of construction employed in an exposed situation might be the grossest negligence. Why is this? .Simply because the law would require the builder to take into account the stress and strain caused by the ordinary winds to which the place was subject. Ret us-suppose there was a material, which, when dry, would make a perfectly safe walk or floor, but which became exceedingly slippery as so.on as it was wet, while there would be no negligence in using such material in a section where rains were unknown, it must be agreed we think, that it would be gross negligence to use such a material even for a level walk in an exposed place in a country subject to rains. The cases are numerous which hold a city negligent in allowing snow.and ice to gather and remain on the walks, otherwise level, such snow and ice being allowed.to form in.mounds dangerous to the public, why-then, upon like reason and principle,' should not a city be. liable, . if it so constructs its walks that, when the same are covered by smooth snow or ice, they must from necessity become dangerous, • and they are so constructed in q .section of .the country wherein it is known that under., the. ordinary climatic conditions there will be times when such snow and ice will gather? We admit fhqt cities- are, not .bound to protect pedestrians •again,st; extraordinary-.,or unlikely..conditions^ also, that .-they are -not li.able -where accidents,,are. caused by the. piere sfipperiness of — 362 — the walks in no way connected with a faulty construction of such walk; but we hold that the law requires a corporation to so construct its walks that they will be reasonably safe under all ordinary conditions. When we use the term “reasonably safe,” we do not wish to be understood as holding that what would be reasonably safe in one municipality would necessarily be reasonably safe in another, or even that a municipality would be held to the same strict rule of construction in different parts of such municipality. It is in this case strenuously urged by the appellant that the rule laid down by the court in its instruction takes no notice of the topography of the place where the walks were constructed. In answer to this point — while admitting that, in determining the question of whether a walk is reasonably safe, the jury should determine whether it is so reasonably safe, not only in view of climatic conditions, but also in view of the topography of the place where such walks are laid, and that where the evidence shows that it would be impossible to properly construct walks without placing the same upon more or less of a slant in ■ order to pass from one cross-street to another, this fact should also be taken into consideration — we call attention that in the case now before us there was no request for a charge on this point, and neither was there any evidence warranting such a charge, as there was no showing of any necessity for having the stone crosswalks cross Fifth street, on a different grade from the walk on Douglas avenue. The following cases support the above: Haskell v. City of Des Moines, 74 Iowa 110, 37 N. W. 6; Shumway v. City of Burlington, 108 Iowa 424, 79 N. W. 123; City of Atchison v. King, 9 Kan. 550; Hill v. City of Fond du Lac, 56 Wis. 242, 14 N. W. 25; Ford v. City of Des Moines, 106 Iowa 85, 75 N. W. 650. The last I-owa .case, supra, holds: “But that walks are made slippery by melting snow is a fact of common knowledge, and should be considered in constructing walks, especially those which have sloping surfaces, and, in consequence, are liable to be dangerous and slippery.” In the Wisconsin case, supra, it is said: “The question was not whether the mere sudden declivity in the sidewalk, in the absence of any storm or freezing, would have been dangerous, nor whether the mere storm and freezing weather, in. — 363 — the absence of the walk in question, and with, a walk differently constructed, would have caused .the danger, but whether that walk, so constructed, with such ice and snow as would ordinarily accumulate upon it during such severe storms and freezing weather as ordinarily occurred at that season of the year, at the place of injury, would be unsafe for travelers upon it.” The Kansas court, in the case above, in speaking of an instruction which had been asked and 'refused, and which instruction was to the effect that if the accident was partly caused by the wet and slippery condition of the sidewalk from the fall of rain, snow, or sleet, without the fault or negligence of the defendant, and partly from the defective sidewalk, then the plaintiff cannot recover, said: “It lays down a principle that at a time when from the conditions of the sidewalks in a city, by reason of a recent fall of rain, snow, or sleet, one most requires a good and safe walk, then is when the liability of a city for a defect in the sidewalk substantially ceases. For it is on such occasions that most accidents happen.” In the Iowa case found in 79 N. W. 124, 108 N. W. 427, it appeared that a walk had been constructed upon a slope, and that for years accumulation of water on an adjacent lot had flowed over this walk, and that plaintiff slipped and fell in consequence of the water 01-ice on the walk; the temperature being below the freezing point. The court in this case say: “The effect of a freezing temperature upon water flowing onto a sidewalk, and the dangers to be apprehended from ice on a sloping walk, were, it must be presumed, known to the defendant. Whether, under all the circumstances disclosed by the evidence, it was negligent in not anticipating the dangerous condition of the walk, and providing against it, was question for the determination of the jury.” The appellant, in support of his claim that the instructions given were wrong and more especially in support of the claim that there twas error in refusing the instructions asked for, to the effect that there could be no recovery where the accident flows from two causes, one the result of negligence on the part of the municipality, and the other from a cause over which fthe municipality had not control, has cited numerous authorities. We think, however, that an éxamination of these authorities will show that, while some of — 364 — them support the proposition that 'damages cannot be recovered where the accident is the result of concurrent causes, yet in many of the cases the real question was not whether there were concurrent causes, but the question of whether the mere fact that a person slipped on a place where the walk was slanting was in itself, without anything further, competent proof that the slant of the walk was what caused the slipping. In the case at bar the court fully instructed the jury to the effect that mere slipperiness of the walk would not render the defendant liable, so that, in order for plaintiff to recover under the instructions given, it was absolutely necessary for the jury to find that the slipperiness of the walk, combined with the defect in its structure caused this accident. If, therefore, the appellant is right in its claims that the instructions asked for should have been given, then this case should be reversed, because under the instructions of the court, if the jury found a defective construction of the walk, and that the accident was caused by such defective construction connected with the slippery condition of such approach, yet, while the court instructed them that the municipality would not be liable merely for such slipperiness, still it did instruct that the municipality would be liable if such slippery condition was one which should have been anticipated by the city, and that if they found the condition one that should have been anticipated, and this condition, taken in connection with the manner in which the walk was constructed, showed a negligence on the part of such city in .constructing the walk, the municipality would be liable, thus instructing that there could be the two concurrent causes, to wit, the structure of the walk and the slipperiness of the ice. Among the cases most relied upon by the. appellant and referred to by it as being very similar to the one at bar is the case of Taylor v. City, 105 N. Y. 202, 11 N. E. 642. We think a careful consideration of this case will show nothing in conflict with the instructions of the court, or any error,in.the courts refusal to give, instructions, asked for. ■ In the later case of Ayres v. Village, a New York case found in 130 N. Y. 665, 29 N. E. 265, the court says: ,‘.‘If.there ,w:as ,no dispute as,to the new ice, the motion to dismiss the, .complaint .should have be.en -granted;, but,..assuming — 365 — that to have been in controversy, it was permissible under the judge’s charge for the jury to have found that the plaintiff fell upon new ice formed on the morning of the 27th, and to have placed -their verdict on the fact that the slope of the walk was a concurring cause of the accident, without which it would not have happened, and in this view of the case it is not distinguishable in its essential features from Taylor v. City of Yonkers, 105 N. Y. 202, 11 N. E. 642. In that case, as this, the plaintiff • fell upon new ice, recently formed .over an old accumulation, and upon a sidewalk having, through negligence of the defendant, a slope from its inner to its outer edge of eight inches, and for that reason assumed to be in a dangerous condition. There, as here, the jury were instructed that the new ice furnished no ground of negligence on the part of the defendant; but, if the slope of the walk was a concurring cause of the fall without which the accident would not have happened, the defendant was liable. But this court reversed the judgment, in the case cited, on the ground that the facts did mot permit the jury to find the slope of the walk to have been a concurrent cause of the fall, and upon that question the cited case and the case at bar are precisely alike. In each case it appeared that the plaintiff fell upon new ice lying upon a slope. To infer from that fact alone that he would not have fallen if the new ice had spread over a level, and did fall because of the slight pitch of the walk, was said in the case cited to be mere guess and speculation. We are compelled to the same conclusion, and nothing need be added to the reasons given in the Taylor Case. The exception considered was well taken, and the judgment must 'be reversed, and a new trial granted.” It will thus be seen that the New York courts recognize that there may be .cases where there are concurrent causes rendering a municipality liable, and that in the Taylor Case the ruling of the court was based upon the fact that there was nothing to show, but that it was the mere slipperiness of the walk that caused thé injury; there being nothing in that case to- show but what the party would have fallen even on the level, nothing whatever to show that it was the pitch of the .walk’ that" caused the fall. In the cáse at bar there was ample evidérice to go to the jury to show that it — 366 — was not the mere slipperiness alone which caused the accident, but there was the evidence to show that with this slippery condition existing the plaintiff had, gone from her home, in a roundabout way,' extending over several blocks, to the church, and had returned part way home without falling. We have no hesitancy in holding that a municipality is liable for damages from an accident the result of two concurrent causes, though one of them is a cause over which the municipality has no control, providing, however, it is a cause which it should have anticipated and have guarded against. Reading, the instructions asked for in the' light of the above, it is clear, either that the matter that ithe instructions asked for is properly ’ covered by the instructions given, or that, where not so,covered, the instructions asked for did not state the proper rules of law as applicable to the facts in this case. It is further contended by the appellant that the plaintiff should not recover owing to her contributory negligence; it being the contention of the appellant that the evidence shows that the plaintiff was familiar with the condition of this approach, that her attention had been directly called to the dangerous condition thereof, and that she attempted to pass over the same knowing of the danger thereof, believing that with care she could go over with safety, and the appellant contends that, under these circumstances, she should not have essayed to pass down the approach, but should have taken some other walk around, or passed down the middle of the street. While the evidence shows the above facts in relation to the knowledge on the part of the respondent, yet it also shows that several other persons had passed down this incline ahead of the respondent and to the knowledge of the respondent, which certainly gave her reasonable canse to believe that she could also go down with safety. Furthermore, '.there is no evidence to show that the middle of the street was passable, or that it would have been possible for her to have crossed the street or taken any other reasonably convenient course less dangerous. In fact, there is absolutely no testimony along this line, and certainly the appellant is in no position to contend that respondent should have taken some other course without some showing that there was such a course open for her. Sidewalks are constructed for people — 367 — to walk on, and they have a right to walk thereon ¡in the most convenient route to reach their destination, and, while they cannot recklessly place themselves in danger of accident, yet, on the other hand, they are not driven to forsake such walks merely because there may be some danger in passing over the .same, and especially when there is no safer route reasonably convenient. The judgment of the trial court and the order denying a new trial are affirmed. CORSON, J., dissents. SMITH, J., takes no part herein.