Bentson v. Berde's Food Center

• Decision Date: 30 June 1950
• Docket Number: No. 35200,35200
• Citation: 231 Minn. 451,22 A.L.R.2d 733,44 N.W.2d 481
• Parties: , 22 A.L.R.2d 733 BENTSON v. BERDE'S FOOD CENTER, Inc., et al.
• Court: Minnesota Supreme Court

Page 481

44 N.W.2d 481

231 Minn. 451, 22 A.L.R.2d 733

BENTSON v. BERDE'S FOOD CENTER, Inc., et al.

No. 35200.

Supreme Court of Minnesota.

June 30, 1950.

Rehearing Denied Nov. 10, 1950.

Syllabus by the Court.

1. Primary duty of keeping public sidewalk in a reasonably safe condition is upon municipality and not abutting owners or occupants.

2. Owner of building adjacent to public sidewalk is not liable for injuries sustained by pedestrian as result of falling on ice accumulated on such sidewalk where such accumulation is from natural rather than artificial causes.

3. Building owner may not use property carelessly to the injury of others, and where he maintains it so that ice is caused to form on adjacent sidewalk as result of artificial rather than natural causes, he may be liable for injuries sustained by person falling thereon.

4--5. In action against tenant occupying premises adjacent to public sidewalk for injuries sustained as result of fall on ridge of ice thereon, evidence Held insufficient to support finding that any negligent acts of such defendant had caused such ice to form or accumulate.

Charles H. Weyl, St. Paul, for appellant.

Clifford W. Gardner, St. Paul, Silver, Green & Goff, St. Paul, for respondent.

THOMAS GALLAGHER, Justice.

This is an action for personal injuries sustained by plaintiff on February 12, 1948, at about 4:51 p.m., as the result of a fall on the sidewalk in front of a building occupied by defendant Berde's Food Center, Inc. (hereinafter referred to as Berde's) on Wabasha street in St. Paul. Joined as a defendant also is Catherine R. Schoenstein, owner of the building. Berde's, her tenant, occupied the first floor and basement of the building. At the close of the trial, the jury returned a verdict against Berde's alone. This is an appeal from the judgment entered after denial of said defendant's motion for judgment notwithstanding the verdict or a new trial.

Plaintiff bases her cause of action upon the alleged negligence of defendant Schoenstein in failing to maintain the gutters, drains, eaves, awnings, and other appurtenances of the building, including a four-foot overhang, so as to prevent water from melting snow from dripping therefrom to the public sidewalk adjacent to the building on Wabasha street and forming thereon ice hazardous to people using such sidewalk; and upon the alleged negligence of Berde in causing ice to accumulate in an artificial manner on such sidewalk and in neglecting to remove or treat such ice so as to make the walk safe for persons using the same.

The building is a five-story structure. At the time of the accident, Berde's occupied the first floor and basement thereof. The basement extended under the sidewalk in question and was heated by a Northern States Power Company main, which served to melt ice and snow on the sidewalk. Supplies for Berde's are taken into the store through large iron doors in the sidewalk over a chute leading into the basement. There are display windows on both sides of the entrance. One was used at the time by Berde's for the purpose of displaying meat and fish placed on cracked ice in a bin therein. This display took up about one-half of a 10-foot window to the north of the entrance.

Just before the accident, plaintiff was walking along Wabasha toward the meat and fish window to look at the display therein. A sheet of ice not more than half an inch in thickness and one-half a foot in width then extended for several feet parallel with and about one and one-half to two feet out from the display window in question. The remainder of the sidewalk was clear. As she walked toward the window, plaintiff slipped and fell on this strip of ice, sustaining the injuries for which the action was brought. It is her contention that this ice was not the result of natural causes, but was an artificial accumulation occasioned by defendants' negligence, as above set forth.

Evidence presented by plaintiff was directed Entirely toward establishing that water had leaked through a small opening in the cornice on the roof of the building, fallen to the sidewalk, and frozen there to form the ice ridge described.

On behalf of defendant Catherine R. Schoenstein, owner of the building, evidence was presented that there was no opening in the cornice through which water might drip. An employe of Citizens Ice & Fuel Company, called on her behalf, testified that on the day of the accident the company had delivered 100 pounds of crushed ice in a canvas sack to Berde's. The deliveryman for Citizens Ice & Fuel Company, likewise called by the building owner, testified that about 5:30 that morning he had delivered the ice to Berde's at that time placing it on the sidewalk near the meat and fish window, the store then being closed. On cross-examination, his testimony indicated that he may have left it in the vestibule south of the meat and fish window.

Arthur C. Wetzel, maintenance man for the building, called by the owner, testified that at times he had seen pools of water where deliveries of ice and fresh vegetables to Berde's had been left on the sidewalk, but could not state whether he had observed anything of this nature during February 1948. He also testified that at a time long subsequent to the...