Ainey v. Rialto Amusement Co.

• Decision Date: 11 June 1925
• Docket Number: 19245.
• Citation: 135 Wash. 56,236 P. 801
• Parties: AINEY v. RIALTO AMUSEMENT CO. et al.
• Court: Washington Supreme Court

236 P. 801

135 Wash. 56

AINEY v. RIALTO AMUSEMENT CO. et al.

No. 19245.

Supreme Court of Washington

June 11, 1925

Department 1.

Appeal from Superior Court, Pierce County; Clifford, Judge.

Action by T. H. Ainey against the Rialto Amusement Company and others. Judgment for defendants, and plaintiff appeals. Affirmed.

A. O Burmeister and M. J. Gordon, both of Tacoma, for appellant.

Bates &amp Peterson and L. E. O'Neill, both of Tacoma, for respondents.

BRIDGES J.

Suit for personal injury. The defendants operate the Rialto Theater, located on Ninth street, in the city of Tacoma. The building fronts on Ninth street and on the east abuts upon an alley which extends north and south between Ninth and Eleventh streets. The alley is 21 feet in width and has sidewalks. The main entrance to the theater is from Ninth street and one of the exits is on the alley. The plaintiff's testimony tended to show that on the 11th of February, 1923, about six inches of snow had fallen throughout the city of Tacoma and vicinity, and that on the next day this snow had melted somewhat and caused it to became more or less icy or slippery and that such was the condition of the sikewalk at the alley exit from the theater. During the forenoon of the 12th, the defendants to some extent removed the ice from that portion of this sidewalk on Ninth street which was in front of their premises and sprinkled some ashes thereon, but did nothing of the kind with the alley sidewalk. Early in the afternoon of the 12th the plaintiff attended the theater and when the performance was over he left by way of the alley exit. There was a sign over the door leading to the alley showing that it was an exit and that patrons of the theater were invited to leave by that door. As the plaintiff stepped onto the sidewalk he slipped and fell and injured himself. It was still daylight when he left the theater. It appears also that plaintiff was well acquainted with the theater and had on previous occasions left it by the alley exit. At the close of the plaintiff's case, the court sustained defendant's challenge to the sufficiency of the evidence and dismissed the action.

The rule generally laid down by the authorities is that an owner or the occupant of a building is under no legal obligation to remove the ice and snow from the sidewalk in front of his premises, which have been deposited there by the elements, or to lessen the risk of injury by placing ashes or other like material thereon; and this doctrine applies not only to persons passing on the sidewalk but also to persons visiting the store on business or for other purposes. The basis of the rule is that it is the duty of the municipality and not of the abutting property owner to keep the streets and sidewalks in a reasonably safe condition for travel.

In 13 R. C. L. 415, the rule is stated thus:

'In the absence of a statutory provision to the contrary the owner or occupant of property owes no duty to pedestrians to keep the sidewalk in front of it free from ice and snow coming thereon from natural causes or to guard against the risk of accident by scattering ashes or using other like precautions, and will not be liable in damages to persons injured by reason of its failure to do so, nor does a storekeeper owe any greater duty in this regard to customers leaving his store than he does to the ordinary pedestrians.'

This rule is supported by nearly all of the authorities. The following are some of them. City of Hartford v Talcott, 48 Conn. 525, 40 Am. Rep. 189; McGrath v. Misch, 29 R.I. 49, 69 A. 8, 132 Am. St. Rep. 798; Dahlin v. Walsh, 192 Mass. 163, 77 N.E. 830, 6 L. R. A. (N. S.) 615, and note; New Castle v. Kurtz, 210 Pa. 183, 59 A. 989, 69 L. R. A. 488, 105 Am. St. Rep. 798, 1 Ann. Cas. 943, and note; Hanley v. Fire...