City and County of Denver v. Willson

• Decision Date: 07 March 1927
• Docket Number: 11596.
• Citation: City and County of Denver v. Willson, 81 Colo. 134, 254 P. 153 (Colo. 1927)
• Parties: CITY AND COUNTY OF DENVER v. WILLSON.
• Court: Colorado Supreme Court

254 P. 153

81 Colo. 134

CITY AND COUNTY OF DENVER v. WILLSON.

No. 11596.

Supreme Court of Colorado, En Banc.

March 7, 1927

Rehearing Denied March 28, 1927.

Error to District Court, City and County of Denver; Francis E Bouck, Judge.

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

Affirmed.

Henry E. May, E. V. Holland, and R. T. Wilson, all of Denver, for plaintiff in error.

Rees D Rees and C. E. Wampler, both of Denver, for defendant in error.

CAMPBELL J.

In her action against the city and county of Denver, plaintiff, Mrs Willson, recovered a judgment as damages in the sum of $4,750 for physical injuries sustained by her as a result of a fall upon a sidewalk within the municipality in the southern residential district. The defendant relies for a reversal upon two grounds only: (1) That the plaintiff's own testimony shows that she was guilty of contributory negligence; (2) that the evidence as a whole establishes that the defendant was not guilty of negligence. No objection to, or criticism is made of, any ruling upon evidence, or of the instructions given by the court, or to the refusal of instructions asked for by the defendant. We enter upon the discussion, therefore, on the assumption that the law of the case was properly given to the jury, and that the judgment is presumed to be right till the contrary is affirmatively shown. Although it was not necessary, we have, for our own satisfaction, read the instructions. If some of them might be, though we do not say they are. subject to criticism that they are abstract statements of the law applicable to personal injury cases, and not sufficiently specific or definite to be of full benefit to the jury in its labors, the defendant is not in a position to urge any such objection. The complaint charges, and the evidence as a whole tends to prove, that on the forenoon of January 9, 1922, the plaintiff, while walking along the sidewalk within the city of Denver, in going from her residence to a downtown restaurant, in which she was working as a waitress, slipped and fell on a thin layer of ice that covered the sidewalk, which ice did not come there from natural causes, but was produced and allowed to be formed by the outpouring of water from a downspout or drain pipe leading from a house erected and maintained by Mrs. Gordon, owner of the adjacent premises, which ice had become glassy and slippery, and in a condition rendering it dangerous for pedestrians to travel or walk over, and which the defendant city permitted to remain in such dangerous condition for a period of ten days or more prior to the accident, the existence whereof the defendant well knew, or by the exercise of reasonable care should have known, in time to remedy the same, but which it negligently and carelessly failed to do. As the result of this fall plaintiff sustained a fracture of the bones of the left foot and left leg below the knee, and a dislocation of her left ankle, the tissues of her left leg were torn and bruised, and her spine and kidneys injured, which injuries are of a permanent character, and render her unable to perform her usual vocation as a waitress as efficiently as she could prior to the injury.

There was testimony tending to show that for a number of years preceding the injury this method of conducting from the roof of the Gordon house the waters from rains and melting snow had prevailed, and in the winter season oftentimes the waters thus precipitated upon the sidewalk would collect and freeze, covering the entire sidewalk. The plaintiff had not walked over this sidewalk for about a week preceding the accident, but in passing upon the adjacent street in her automobile she saw that it was covered with ice, and was so covered at the time of the accident. On the morning of the accident snow began to fall, and about 2 inches had fallen at the time plaintiff was passing along the walk, so that the ice was not visible to her at the time she fell. When she reached the place in the sidewalk where the water coursed in its passage from the Gordon house through the drain pipe, plaintiff slipped and fell on the ice, and received the injuries as above stated. Her testimony is to the effect that she was proceeding with that degree of care and caution which was commensurate with the dangerous condition of the walk with ice and snow upon it. Plaintiff testified specifically, and she was corroborated by other witnesses, that this icy condition of the walk had existed for ten days or more before the injury.

There is testimony by Mr. Gordon, in part corroborated by another witness, that the night before the day of the accident Mr. Gordon removed all of the accumulation of ice that was there at that time, but the jury evidently did not believe it. That there was on this sidewalk the night before ice at the same spot where plaintiff fell the next morning is beyond dispute. Indeed, the defendant city cannot be heard to question it, for it elicited from its own witness Gordon that there was ice there at that time, and that he then cleared the walk of all of it. There is no impeaching or qualifying testimony that during that night, and before the time plaintiff fell the next morning, water flowed through the drain pipe after Gordon's alleged work or removal of the old accumulation, or that any new ice was formed there during the night. Plaintiff testifies that she fell on the ice that was on the sidewalk at that place. If she fell upon an icy sidewalk, it was for the jury to say, from the conflicting testimony, whether or not there was ice on the walk, and when it formed there, and whether it was the cause of the fall. The record, therefore, shows that while the evidence was in conflict a case was made by the plaintiff which entitled her to go to the jury upon it. The defendant, however, strenuously insists, in the language of her assignments, that the case as made by plaintiff herself makes legally impossible a judgment in her favor, not only because she was guilty of negligence that contributed directly to her injuries, but also because the defendant was entirely free from blame. These objections in their order.

1. In view of the evidence above summarized, we are not impressed with the contention of the defendant that the plaintiff's evidence showed her guilty of contributory negligence. The court correctly instructed the jury as to the duty of the plaintiff of exercise ordinary care, and, in view of the increased danger from snow and ice on the sidewalk, that this circumstance imposed upon her an increased degree of care in proportion to the increased danger. The mere fact that the plaintiff knew of the condition of the sidewalk at the time she was walking upon it does not of itself constitute negligence on her part that contributed to her injury. She had a right to use the sidewalk as a pedestrian. There is no evidence that the adjacent highway would have been at the time any safer for her.

The defendant cites and relies upon City of Victor v. Carbis, 59 Colo. 92, 147 P. 331, and Colorado Springs v. Phillips, 76 Colo. 257, 230 P. 617, for its contention that the plaintiff was guilty of contributory negligence. In the Carbis Case the facts are essentially dissimilar. The plaintiff there was suffering from a fracture of the kneecap, and, while pushing and hastening down a sidewalk in the city of Victor to mingle in a crowd gathered to witness a prospective street fight, on which his mind was...