City and County of Denver v. Brubaker

• Decision Date: 21 October 1935
• Docket Number: 13470.
• Parties: CITY AND COUNTY OF DENVER v. BRUBAKER.
• Court: Colorado Supreme Court

51 P.2d 352

97 Colo. 501

CITY AND COUNTY OF DENVER v. BRUBAKER.

No. 13470.

Supreme Court of Colorado, En Banc.

October 21, 1935

Error to District Court, City and County of Denver; George F Dunklee, Judge.

Action by Elizabeth Brubaker against the City and County of Denver. Judgment for plaintiff, and defendant brings error.

Affirmed.

CAMPBELL HOLLAND, and BURKE, JJ., dissenting.

James D. Parriott, Frederick P. Cranston, and Karl C. Brauns, all of Denver, for plaintiff in error.

John A. Carroll, Thomas J. Morrissey, and John F Mueller, all of Denver, for defendant in error.

BOUCK Justice.

Verdict and judgment went against the City and County of Denver in favor of Mrs. Brubaker, the plaintiff, for damages on account of negligence. The city seeks a reversal.

The complaint alleged that on the morning of December 17, 1930, the plaintiff was walking on the public sidewalk along Eighteenth avenue between Sherman and Grant streets in Denver; that without any fault on her part she slipped, fell, and was injured because of the snow and ice which had been allowed by the city to form and remain on the sidewalk for a considerable period of time Before the fall; that the snow and ice rendered it dangerous for pedestrians to travel or walk thereover. It was further alleged that the city knew, or should have known, of this sidewalk condition in time to have remedied it by the exercise of reasonable care.

The city's answer denied the negligence alleged, and charged the plaintiff with contributory negligence.

As to both facts and law the case at bar strongly resembles the case of City and County of Denver v. Willson, 81 Colo. 134, 254 P. 153, which is referred to by both sides. In that case and in this an icy accumulation appears to have been due to a down spout or drainpipe discharging water upon the sidewalk so that freezing resulted in a more or less permanent deposit above the normal surface.

The alleged errors relied upon here for reversal are: (1) The refusal of the trial court to permit the city to introduce in evidence a certain ordinance relative to the cleaning of snow from sidewalks; and (2) the admission of evidence to the effect that other persons than the plaintiff fell on the same icy sidewalk.

1. The ordinance which the city formally offered in evidence and which was rejected by the trial court is section 1746 of the Denver Municipal Code 1927, which reads as follows: 'The owners or agents or occupants of houses, warehouses, stores or tenements and grounds belonging thereto or occupied by them shall keep the sidewalks and gutters in front of and adjoining such property clean, and after any fall of snow shall cause the same to be immediately removed from the sidewalk and gutters fronting their respective lots or parts of lots into the carriage way of the street.' Punishment by fine is provided for violations. When making the offer, counsel did so by stating: 'The defendant offers to prove, and tenders proof that the ordinances of the City and County of Denver, section 326, and further by sections 1746 to 1750, to which your honor's attention is called, that the liability is upon the property owner to clean off the snow, and the City and County of Denver is entitled to reasonable time after the snow falls within which the property owner should remove the snow, that for that reason the City and County of Denver may wait a reasonable time, and that the time from the time of the fall of the snow until the accident happened was a reasonable time, and a time within which the city could rely upon the property owner doing the duty required by ordinance. This tender refers not only to snow but also to the removal of ice.'

The offer was manifestly insufficient to bring the case within the authorities cited by counsel for the city, and was properly rejected. In and of itself the ordinance certainly has no logical bearing upon the alleged negligence of the city. The section quoted merely creates a duty and liability owed by one who owns, occupies, or is agent for, the property. Inasmuch as the city is the sole defendant, the provision has no relevancy here. The question raised by the city, as to what constitutes a reasonable time for the city to see that a sidewalk is cleared, is in no way regulated thereby. The proper answer to this question depends upon evidence of the facts and circumstances surrounding the whole transaction, and upon the principles which the law applies to that evidence. To these principles the trial court devoted a number of detailed and comprehensive instructions, none of which is objected to by the city. No complaint is made that the city was unduly or at all restricted in presenting evidence of the facts and circumstances, or in meeting the evidence of the plaintiff. The city neither introduced nor offered any evidence that might supplement, amplify, or explain the rejected ordinance, which therefore could serve no purpose and is properly out of the case.

It follows that the refusal to admit the ordinance under the conditions disclosed in this case was not error.

2. The second contention advanced by the city is based upon the plaintiff's introduction of evidence concerning the slipping and falling of several other persons in the place where the plaintiff fell. At first blush, the argument seems to have merit, but a brief consideration will show its fallacy. Incidentally, we note that this evidence came almost casually. It went into no details, and we are convinced that no prejudice could have resulted from it, even if it had not been admissible. But we think it was properly admitted.

Unquestionably it is a general rule that evidence of similar but disconnected incidents is irrelevant and immaterial on the issue of whether plaintiff is entitled to recover because of a defendant's negligence. Many different factors may enter into an individual case. To argue that one or more independent but similar instances, possibly tending to establish negligence, imply negligence in a pending case, would violate a salutary principle of proof. This is not the situation here. In the case at bar the situation cannot be described in such general terms. Examining the evidence complained of, we find that, according to the testimony adduced, from five to eight other persons slipped and fell at the very point where the plaintiff is shown to have slipped and fallen, and that these occurrences were immediately prior to the plaintiff's injury, namely, within the period of three-quarters of an hour Before . The repeated slipping within that time--too short to make a substantial change of condition at all likely--had a direct bearing on the issue by indicating an unusual situation which was dangerous. Standing by itself, such evidence would of course have been insufficient to make out even a prima facie case of negligence against the city. It is not evidence of negligence as such. In a case like the present, however, the city must be proved to have received either actual or constructive notice. Here constructive notice is alone involved. That sort of notice is almost always based, in such cases as this, upon the continued existence of a dangerous condition. For that purpose the evidence constituted a legitimate part of the whole. The jury could not have been misled by the admission of this evidence. The instructions given to the jury fully covered the point we have just discussed. They seem to have been fair and correct, and bind both parties; the city having abandoned its assignment of error in connection with the only instruction to which it originally objected. The trial court was careful in presenting the city's theory of the case.

The rule applicable to this case is correctly stated by Mr Justice Bailey in Griffith v. Denver, 55 Colo. 37, at page 39, 132 P. 57,...