Abbott v. City of Springfield

• Decision Date: 25 February 1919
• Docket Number: No. 2386.,2386.
• Citation: 210 S.W. 443
• Parties: ABBOTT v. CITY OF SPRINGFIELD.
• Court: Missouri Court of Appeals

210 S.W. 443

ABBOTT v. CITY OF SPRINGFIELD.

No. 2386.

Springfield Court of Appeals. Missouri.

February 25, 1919.

Rehearing Denied April 7, 1919.

Appeal from Circuit Court, Webster County; C. H. Skinker, Judge.

Action by Annie M. Abbott against the City of Springfield. Judgment for plaintiff, and defendant appeals. Affirmed.

Fred Moon, of Springfield, for appellant. McLain Jones, L. L. Collins, and Hamlin & Hamlin, all of Springfield, and Seth V. Conrad, of Marshfield, for respondent.

BRADLDY, J.

Action to recover for injuries resulting from falling on an icy sidewalk. A jury trial resulted in a verdict and judgment for plaintiff, and defendant prosecutes this appeal.

Plaintiff, a single woman, about 43 years old at the time, fell on the sidewalk on the east side of South street just off the public square in the city of Springfield, Mo., resulting in serious and permanent injuries. It is charged in the petition that the sidewalk on account of the negligence of the city through its officers and agents was covered with an accumulation of snow and ice and a formation of rough and uneven snow and ice, and liable to cause pedestrians to slip and fall and injure themselves. It is charged that the city knew of this alleged dangerous condition of the sidewalk at this particular time and place, or in the exercise of ordinary care in the premises could and would have known thereof. It is alleged that on the 5th day of February, 1913, plaintiff, while in the exercise of due care, and while walking over said sidewalk, slipped on the ice thereon, and fell, breaking her leg near the hip joint. The answer is a general denial, and a plea of contributory negligence.

On February 2, 1913, two or three inches of snow fell in Springfield and vicinity, and about the same amount fell on the 3d. There had been some slight alternating thawing and freezing since the snow had fallen. Also pedestrians had beaten out a single path on this sidewalk where plaintiff was injured. The city and property owners had cleared the sidewalks around the public square of the snow, and also the sidewalk on the west side of South street leading off the public square, but the sidewalk where plaintiff was injured had not been cleaned. There was a leaky downspout alongside the building by which this sidewalk ran, and the water escaping from this downspout ran out over the sidewalk and froze in ridges. The downspout was supposed to convey the water from the roof, and discharge it underneath the sidewalk, but because the downspout was old and leaky a great quantity of water was permitted to flow across the sidewalk. It seems that this froze in ridges like, and the ridges were highest nearer the wall, and sloped from there to the edge of the walk.

Plaintiff had been transacting business on the public square, and going home she turned south down the sidewalk on the east side of South street, walking in the beaten path. At this downspout she met a man in the path walking north. She stepped her left foot out of the path to the left, that she and the other pedestrian might pass, and in doing so set her foot on one of these balls or ridges of ice from the downspout and fell, resulting in the injuries mentioned. The balls or ridges of ice from the downspout were covered with snow so that they were not visible, but the downspout itself was much bedecked with clinging ice and icicles unmistakably indicating numerous leaks. Plaintiff, describing the condition of the walk at the place of her injury, said that it was very uneven; that there were rolls of snow and ice there, "and up against the building where I stepped out it was rolled up in billows." Plaintiff offered evidence tending to establish that she was injured in the manner herein set out, and that the city officers whose duty it was to remedy dangerous conditions in the sidewalk either actually knew of this condition at the downspout or should have known if in the exercise of ordinary care. Defendant interposed and stood on a demurrer at the close of plaintiff's case.

The demurrer goes primarily to the proposition that the city is not liable for injuries resulting from snow and ice accumulations on the sidewalk where that condition is general, and due to alternate thawing and freezing, and the tracking and disturbing by pedestrians. Reasonable care on the part of the city did not require it to remedy a general condition naturally consequent from the alternate thawing and freezing of snow on sidewalks; unless there was some especially dangerous condition. While such condition renders walking on the sidewalk somewhat unsafe, yet it is not sufficient, unless especially dangerous, to constitute negligence, when the condition may be said to be the natural, general, and prevailing condition, and due to weather conditions and the use of the sidewalk by pedestrians. Vonkey v. City of St. Louis, 219 Mo. 37, 117 S. W. 733; Reedy v. Brewing Association et al., 161 Mo. 523, 61 S. W. 859, 53 L. R. A. 805; Albritton v. Kansas City, 192 Mo. App. 574, 188 S. W. 239; Livingston v. St. Joseph, 174 Mo. App. 636, 161 S. W. 304. In Reedy v. Brewing Association et al., supra, 161 Mo. loc. cit. 538, 61 S. W. 862, 53 L. R. A. 805, it is said:

"The water which was frozen here did not fall in rain or snow from the clouds; the city was not confronted with a thousand miles of ice-covered sidewalks to look after, nor were the people using the sidewalk at this point admonished by the general conditions surrounding them that ice was to be expected. The weather was dry, clear, and cold; there was ice at that Point for a distance of about 15 feet, but not elsewhere. That the condition was dangerous is demonstrated by the plaintiff's fall; that the danger could have been removed with little labor or expense is beyond question. Therefore the city is not excused as it is when its powers are overcome by nature covering the face of the earth with ice and snow."

While the general rule is as above stated as to the liability of the city for snow and ice upon the sidewalk, yet a city is required to exercise reasonable care to keep its sidewalks free from all dangerous obstructions which do not belong to a generally dangerous condition due to natural causes, and the law recognizes that snow and ice which have been suffered to accumulate on a sidewalk and to assume an especially dangerous form is such an obstruction as will constitute negligence if known actually or constructively, and not remedied within a reasonable time. Albritton v. Kansas City, supra; Vonkey v. St. Louis, supra; Reno v. City of St. Joseph, 169 Mo. 642, 70 S. W. 123; Barker v. Jefferson City, 155 Mo. App. 390, 137 S. W. 10; Canterberry v. Kansas City, 149 Mo. App. 520, 131 S. W. 120; Fogg v. Kansas City, 187 Mo. App. 252, 173 S. W. 712.

In Reno v. City of St. Joseph, supra, it is said:

"It may be conceded that a city is not liable for accidents occasioned by mere slipperiness caused by ice upon its sidewalk, but if the ice is so rough and uneven, or so rounded up, or at such an incline as to make it an obstruction, and to cause it to be unsafe for travel with the exercise of ordinary care, then it is liable for injuries sustained by a pedestrian under such circumstances. * * * Or when snow and ice are permitted to accumulate upon a sidewalk of a city, and are permitted to remain there until by thawing and freezing they become an obstruction and the sidewalk unsafe for travel, and the city has knowledge thereof for a sufficient length of time before an accident, and...