Smith v. City of Cloquet

Brown, J. Action for personal injuries alleged to have resulted from the negligence of defendant. Plaintiff had a verdict, and defendant appealed from an order denying its motion for judgment or a new trial. The injury of which plaintiff complains was received by her on December 12, 1910, by falling upon one of the sidewalks of the city, and it is her claim that the walk at this point was in a defective condition by reason of the accumulation of ice and snow which, by travel and otherwise, had become rough and uneven, and dangerous and unsafe for public use. She further claims that this condition of the walk was caused by the negligence of the city in failing properly and seasonably to remove the snow and ice, and to keep and maintain the walk in reasonably safe condition for public use. It is well settled by the authorities that mere slipperiness of streets and sidewalks, caused by an accumulation of ice and snow, creates no liability for injuries to persons in consequence of that condition. It is equally well settled that, where ice and snow are permitted to accumulate and remain upon the streets and walks to such an extent and for such a time that slippery and dangerous ridges, irregularities, and depressions are formed therein from travel or other causes, thus rendering travel thereon unsafe, the municipality may be liable, if that condition is brought about by its neglect. Henkes v. City of Minneapolis, 42 Minn. 530, 44 N. W. 1026; Wright v. City of St. Cloud, 54 Minn. 94, 55 N. W. 819; Keane v. Village, 130 N. Y. 188, 29 N. E. 130; McAuley v. City, 113 Mass. 503; Broburg v. City, 63 Iowa, 523, 19 N. W. 340, 50 Am. Rep. 756; Cook v. City, 24 Wis. 270, 1 Am. Rep. 183. The question in the case at bar is whether the evidence made a case for the jury within this rule of liability. Defendant contends that the evidence is wholly insufficient. We have carefully read the record,-and concur with the learned trial court that the evidence, though [52] by no means conclusive, was sufficient to take the case to the jury, and that it supports the verdict. The sidewalk had been used by boys for coasting, and was a much frequented thoroughfare. A sloping ridge, four or five inches high, had been formed in the center of the walk, and there was evidence of unevenness and roughness caused by travel, and sufficient to justify the conclusion that it was in an unsafe and dangerous condition for use. The evidence also tended to show that the condition stated had existed for a sufficient time to charge defendant with notice. This made a case of negligence for which defendant is liable. Numerous authorities sustaining this view of the case may be found cited in [Elam v. City (Ky.)] 20 L.R.A.(N.S.), 656. The further contention of defendant that the evidence fails to show that plaintiff fell upon the walk in consequence of the conditions stated is not sustained. That was a fair question for the jury. The question of contributory negligence or assumption of risk was not presented on the trial below, and for that reason neither question is properly before us. If either question was litigated and considered in the case, a request to submit them to the jury should have been made. Ellington v. Great Northern Ry. Co. 92 Minn. 470, 100 N. W. 218. The notice to the city of the time and place of the accident was sufficiently specific and answered every purpose of the law. Kandelin v. City of Ely, 110 Minn. 55, 124 N. W. 449. Order affirmed.