Scoville v. Salt Lake City

MeRRItt, 0. J.: This action was brought by respondent against the appellant to recover damages for an injury sustained by his •child, a boy aged 18 months, at the time of the accident, near the Western Union Telegraph Office, in Salt Lake -City, on the east side of Main street. Ice had been allowed to accumulate on the sidewalk, caused by the freezing of water which came down a conductor and a waste pipe leading from a sink, and was allowed to flow out and over the sidewalk. The conductor had been there a long time, and the water flowing from thence would freeze and thaw as the weather was cold or warm. The conductor was -about four inches in diameter, made of tin, and was used, to carry off the rain or snow as it melted from the roof •of the building adjoining the walk. The sidewalk at this place was also sloping or slanting to the south, and also towards the curb, making it all. the more dangerous and slippery when the water froze. At the time of the acci•■dent, the ice covered a space of two or three feet wide across the sidewalk diagonally towards the curb, and was from one to fifteen inches thick, measuring from the curb up to the mouth of the' conductor. At the time of the ■ accident, a slight snow was and had been falling for several hours, which in a large measure covered and obscured the ice. On the 7th day of January, 1892, in the afternoon, about 5 o’clock, respondent’s wife was walking along the sidewalk at a usual gait, carrying the child in her .arms, and, when she reached this place covered with ice, slipped and fell as she walked upon it. In falling, the .child was thrown with considerable force to the walk, [64] striking with its back on the sidewalk, from which the? child received an inguinal rupture. At the conclusion of the testimony for the respondent,, appellant moved the court for a nonsuit, and the motion was denied, and appellant rested the case without introducing or offering any evidence. After argument by counsel, the court charged the jury, and they retired to-consider of their verdict. Later they returned into court, for further instruction, and the court, in open court, and in the presence of counsel for the respective parties, further charged the jury. The whole charge, as given in open court, was, at the request of the jury, sent to their room in writing. The jury rendered a verdict in favor of' the respondent. Appellant's motion for a new trial was denied, and this appeal is prosecuted from the order-refusing a new trial, and from the judgment. The errors assigned and relied on are: First. The. evidence was insufficient to sustain the verdict or any verdict for respondent, and appellant's motion for a non-suit should have been granted. Second. The court erred in refusing to give the requests of appellant. Third. The court erred in permitting its written charges to be-sent to the jury. That the ice in question was not the result of snow or-rain falling or dripping from eaves, and not from any natural cause, but was caused from water discharged on the sidewalk by means of a conductor used to carry water-from the roof of the building, and, too, by a defective-one, and from a waste pipe, is clear from the evidence.. The ice was the result of an artificial, and not a natural, cause. There is no evidence at all to sustain appellant's-contention that the ice was the result of the prevailing-Aveather, and not one witness in the case so testified. 'Where a corporation permits the discharge of water from adjoining houses to be obstructed, or permits the water to [65] be discharged on its walk by some artificial means, and) there allowed to freeze, in such case its own act of wrongdoing contributes to the accumulation of the dangerous ice, and the corporation will be held liable. Here the icé-is the result of an artificial, not of a natural, cause. Where a municipal corporation has permitted ice and snow to accumulate and remain upon sidewalks of a large city-in the business part thereof for an unreasonable time, in a rounded, uneven, and dangerous condition, and an injury .occurs by reason thereof to one who is properly using the-walk, the municipality is liable. Elliott, Roads & S. p. 459; Collins v. Council Bluffs, 32 Iowa, 324; McLaughlin v. City of Corry, 77 Pa. St. 109; Luther v. Worcester, 97 Mass. 268; Morse v. Boston, 109 Mass. 446. In this case-the evidence shows that there was ice at the point mentioned on the sidewalk all winter, and this ice was there-accumulating from December to January 7, the time of the injury. The question of notice to appellant was one of fact for the jury to determine, and not a question for the court. Elliott, Roads & S. p. 461; Dill. Mun. Corp. § 1026. In Wisconsin, where a defect in a sidewalk existed one day,, and in Massachusetts, where a defect in a highway existed 13 hours, and in Connecticut, a few hours, from frozen water, it was held that it was for the jury to determine-whether that constituted sufficient notice. Howe v. City of Lowell, 101 Mass. 99; Sheet v. City of Appleton, 49 Wis. 125, 5 N. W. 27; Gaylord v. City of New Britain, 58 Conn. 398, 20 Atl. 365. This defect and accumulation, of ice was on the most-traveled walk in the city. The-question of notice is not alone determined from the length of time a defect has existed, but also from the nature and character of the defect, the extent of the travel, and whether it is in a populous or sparsely-settled part of the [66] «city. Besides, there is, in this case, evidence tending to •show actual notice to the city. The question as to whether the acts and conduct of appellant, and the facts, as shown ■by the evidence, constitute negligence was one for the jury to pass upon. Bowers v. Railroad Co., 4 Utah, 215, 7 Pac. 251. The court, therefore, did not err in sub.mitting the case to the jury. The charge of the court correctly stated the law in the premises, and all the requests of appellant were substantially given in the charge of the court. Appellant, however, is not in a position to avail itself of any error in the •charge of the court, should there be any, for it has not properly made and saved its exceptions. The only exceptions taken by appellant are: “In this case we desire to .have an exception to each paragraph of the charge of the •court; also save our exceptions to the refusal of the court to give the instructions asked for by the defendant/'’ This court has held that such exceptions are too .general, both ¡for an exception to the charge as given and for the .requests refused. Marks v. Tompkins, 7 Utah, 421, 27 Pac. 6. General exceptions to all the instructions are of no effect, and will not be considered if any portion of the charge is correct. Exceptions must be specific to the particular instructions. Nelson v. Brixen, 7 Utah, 454, 27 Pac. 578; Cooper v. Schlesinger, 111 U. S. 148, 4 Sup. Ct. 360; Railway Co. v. Jurey, 111 U. S. 584, 4 Sup. Ct. 566. A.n exception to each and every part of the charge is too .general. It has been too frequently decided in this court to require authorities to sustain the proposition that where the charge gives the substance of the requests for instructions, or where the charge as a whole covers the questions embraced in the requests, it is not error to refuse the ¡requests, even though technically good in law. In such case the court is not bound to use the language of counsel, but may use its own. This has uniformly been the [67] practice in this territory, and is sustained by the supreme court of the United States. People v. Chadwick, 7 Utah, 141, 142, 25 Pac. 737; Cunningham v. Railway Co., 4 Utah, 206, 7 Pac. 795; People v. Olsen, 4 Utah, 413, 11 Pac. 577; People v. Hampton, 4 Utah, 258, 9 Pac. 508; Clampitt v. Kerr, 1 Utah, 247; Railroad Co. v. Horst, 93 U. S. 291; Laber v. Cooper, 7 Wall. 565. The court did not err in permitting the jury to take to iheir room the charge of the court after it was reduced to writing. All the charge was given in open court, and in presence of counsel for both parties. That it is proper to allow written instructions to go to the jury room, see People v. Cummings, 57 Cal. 88. In the absence of contrary statutory direction on the subject, the instructions given by the court to the jury in writing may, in the discretion of the court, be taken with them to their room when they retire to deliberate. Differences of climate and locality are to be considered in determining the liability of municipalities for their failure to exercise care in removing ice and snow from their walks. Bach case must be considered with reference to ■the climate of the place. In Minnesota, where snow and ice exist almost constantly through the winter season, to require municipalities to keep their walks absolutely free •of ice and snow would he highly unreasonable. But in other localities and in a warmer climate, like Utah,, where .snow and ice, although not unusual, are by no means continuous, to require the municipalities to keep their walks ffree of ice and snow, especially in particular localities, is by no means unreasonable. Jones, Neg. Mun. Corp. § 100. Upon a full examination of the case and authorities •cited, we are of the opinion that the judgment should be .affirmed; and it is so ordered. Smith and KiNG, JJ., concur.