Bennett v. McGoldrick-Sanderson Co., Inc.

• Citation: 129 P.2d 795,15 Wn.2d 130
• Decision Date: 14 October 1942
• Docket Number: 28570.
• Parties: BENNETT v. McGOLDRICK-SANDERSON CO., Inc., et al.
• Court: United States State Supreme Court of Washington

129 P.2d 795

15 Wn.2d 130

BENNETT v. McGOLDRICK-SANDERSON CO., Inc., et al.

No. 28570.

Supreme Court of Washington, En Banc.

October 14, 1942

Action by Tina Bennett against McGoldrick-Sanderson Company Incorporated, and others, to recover for injuries sustained by plaintiff when she slipped and fell on an icy sidewalk. From a judgment in favor of the plaintiff against the named defendant only, the named defendant appeals.

Judgment reversed with directions.

MILLARD BLAKE, and DRIVER, JJ., dissenting.

Appeal from Superior Court, Spokane County; Ralph E. Foley, judge.

Edge Keith & dePender, Leo N. Cashatt, and T. J. Fitzpatrick, all of Spokane, for appellant.

Robertson & Smith, of Spokane, for respondent.

STEINERT Justice.

This is an action to recover damages for personal injuries sustained by plaintiff in consequence of slipping and falling upon an icy sidewalk in the city of Spokane. The complaint joined as defendants to the action May Palmerston White, the owner of the building abutting the sidewalk at the point where the accident occurred, Mary Ellen Morse, a tenant occupying a small part of the ground floor and all of the two upper floors, and McGoldrick-Sanderson Company, a tenant occupying another portion of the ground floor immediately adjacent to the scene of the accident. At the conclusion of the plaintiff's case, the defendants severally challenged the sufficiency of the evidence and moved for a nonsuit. The motion of Mary Ellen Morse was granted and the action was dismissed as to her, but the motion of each of the other two defendants was denied. At the conclusion of all the evidence, the two remaining defendants, namely, May Palmerston White and McGoldrick-Sanderson Company, moved for judgment of dismissal or, in the alternative, for a directed verdict. Both motions were denied, and the cause was submitted to the jury, which returned a verdict against McGoldrick-Sanderson Company alone. Upon denial of the latter's motions for judgment notwithstanding the verdict or, in the alternative, for a new trial, the court entered judgment in favor of the plaintiff against McGoldrick-Sanderson Company, and a separate judgment against the plaintiff in favor of May Palmerston White, the owner of the building. McGoldrick-Sanderson Company has appealed from the judgment against it. The plaintiff, on the other hand, has not appealed from the order dismissing her action against Mary Ellen Morse, or from the judgment in favor of May Palmerston White.

The accident out of which this action arose occurred on February 4, 1938, at about 8:15 a. m., on Post street near First avenue, in the down-town portion of Spokane. Post street runs north and south; First avenue runs east and west. At the southwest corner of the intersection is situated a three-story brick building known as the Palmerston Building, which has a frontage of about one hundred fifty feet along Post street and a frontage of about forty feet along First avenue. At the time with which we are here concerned the building was owned by defendant May Palmerston White. The two upper floors, together with an entrance and ground-floor lobby on Post street about sixty feet south of First avenue, were occupied and used by defendant Mary Ellen Morse for hotel purposes, under a tenancy from month to month. The ground floor of the building, north of the hotel lobby and fronting upon both Post street and First avenue, was occupied and used by appellant, McGoldrick-Sanderson Company, as an automobile service station, under a lease from the owner.

When appellant first obtained its lease it removed the greater portion of the first-story walls, leaving only a supporting column at the northeast corner of the building. In the triangular arcade thus formed appellant installed gasoline pumps and, to make these accessible from the adjoining streets, broke down portions of the sidewalks on the north and east sides of the building and constructed driveways across them, thus making it possible for automobiles to enter the station at an angle from either street, obtain service, and then make their exit to the other street. The sidewalk along Post street is fourteen feet in width, and the driveway across it, measured north and south along the length of the sidewalk, is approximately thirty-six feet wide. The portion of the sidewalk used as a driveway is five and a half inches lower at the curb line than at the property line, having been broken down at its outer edge to within about an inch of the street level. Furthermore, the sidewalk along Post street adjoining the Palmerston Building has an upgrade, from north to south, of approximately three per cent.

The Palmerston Building, on the two sides fronting on First avenue and Post street, is adorned with two ornamental cornices, one near the top of the building, and the other near the base of the windows on the second floor. The upper cornice is twenty-four inches wide, and the lower eighteen. Both of them slope outward toward the street and are without gutters, so that when snow lodges there and then melts, the water drips down upon the sidewalk. Respondent does not contend, nor is there any evidence to show, that the appellant, whose tenancy is limited to the ground floor, has ever exercised any control over these cornices or assumed any supervisory responsibility with respect thereto.

During the five-day period ending February 2, 1938, eleven and eight-tenths inches of snow fell in Spokane, after which there was no further snowfall until subsequent to the accident here involved. During this period from January 29th until the time of the accident, the temperature in Spokane varied from nine to forty-five degrees Fahrenheit, thus causing intermittent thawing and freezing. On the morning of February 4th there was still five inches of snow on the ground, except where it had been artificially removed.

On the day of the accident the respondent, a woman forty-three years of age, left her home at about eight o'clock in the morning, intending to go to her work at W. P. A. headquarters on Post street, four blocks south of the Palmerston Building. She alighted from a bus at Post street and Riverside avenue, two blocks north of that building, and proceeded to walk south along the sidewalk on the west side of Post street. As she came abreast of the Palmerston Building she was walking about two feet from the property line, and at a point about twelve feet south of the northeast corner of the building she slipped and fell upon the sidewalk, sustaining the injuries for which this action has been brought.

There is a conflict in the evidence as to the condition of the sidewalk at that time. Appellant's evidence was, in substance, to the effect that there were scattered patches of thin, smooth ice upon the sidewalk, but that for some days prior to the accident, up to and including the night Before , regular efforts had been made to keep the sidewalk in a safe condition by removing all accumulations of snow and by sprinkling salt and sand over any icy spots. Respondent's evidence was to the effect not only that the entire sidewalk was icy and slippery, but also that there were ridges of ice an inch thick along the inner portion of the driveway, below the cornices heretofore described, indicating that water had dripped from above and frozen on the sidewalk, and that automobiles passing over the driveway had left rough, chunk-like pieces of ice thereon. There was further evidence that other pedestrians had previously slipped or fallen, or had been showered with dripping water, at or near the same place. Whatever conflict there may have been as to the physical condition of the sidewalk at the time, however, has been resolved by the jury's verdict. We therefore proceed upon the assumption that the entire sidewalk was icy and slippery, that there were uneven ridges of ice upon the driveway near the property line of the building, and that automobiles had left corrugated tracks upon the driveway. The question presented upon this appeal, then, is whether, under these circumstances, the respondent is entitled to recover for her injuries as against the appellant.

In determining this question, we must take cognizance, first of all, of a well-settled rule as to which there is no dispute in this case and which is fundamental in all litigation of this sort. This rule is well stated in 13 R.C.L. 415, Highways, § 341, as follows: '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 his failure to do so.' (Italics ours.) See, also, 43 C.J. 1106, Municipal Corporations, § 1869; Notes, 1923, 24 A.L.R. 387, 388, 1906, 1 Ann.Cas. 945, 946. In 25 Am.Jur. 803, Highways,§ 522, this rule as to the adjoining owner's immunity from liability is said to apply where ice and snow have been deposited upon a sidewalk 'by the acts of others,' as well as in cases where the dangerous conditions is entirely due to natural causes. This court has followed the above-quoted rule in its broadest implications. Zellers v. Seattle Lodge No. 92 B.P.O.E., 94 Wash. 32, 161 P. 834; City of Seattle v. Shorrock, 100 Wash. 234, 170 P. 590; Ainey v. Rialto Amusement Co., 135 Wash. 56, 236 P. 801, 41 A.L.R. 263.

Respondent does not dispute the law as stated above, but contends that it does not apply to the facts of this case for the reason that in this instance the dangerous condition of the sidewalk did not come about solely from natural causes, but was produced or aggravated by...