City & County of Denver v. Dugdale, 16854

• Decision Date: 30 March 1953
• Docket Number: No. 16854,16854
• Citation: 127 Colo. 329,256 P.2d 898
• Parties: CITY & COUNTY OF DENVER v. DUGDALE.
• Court: Colorado Supreme Court

Page 898

256 P.2d 898

127 Colo. 329

CITY & COUNTY OF DENVER v. DUGDALE.

No. 16854.

Supreme Court of Colorado, en Banc.

March 30, 1953.

Leonard M. Campbell, Burton Crager and Duncan J. Cameron, Denver, for plaintiff in error.

Bernard B. Carraher and John F. Mueller, Denver, for defendant in error.

HOLLAND, Justice.

Defendant in error, as plaintiff, brought suit against the City and County of Denver, alleging that, due to the negligence of the City in permitting snow and ice to accumulate on a public sidewalk on the north side of East 18th avenue, between Franklin street and the alley immediately west thereof, she slipped and fell on the 21st day of November, 1947, about two thirty o'clock in the afternoon, and as a result of the fall sustained injuries for which she sought damages.

The case was tried to the court without a jury. At the conclusion of the testimony offered by plaintiff, defendant moved for a nonsuit on the ground that plaintiff had not proven a prima facie case of negligence, because of no showing that the City had either actual or constructive notice; that from the testimony it was shown that there was ice on the sidewalk, but how it originated, or how long it had been there, nobody knew, therefore the City could not have had notice of this particular icy condition. The court denied the motion and after the introduction of testimony by the City, entered its judgment in favor of plaintiff in the sum of $2600. It was shown that the total amount of bills for medical aid, hospitalization and domestic help incurred by plaintiff was in the sum of $1346.30. The City seeks reversal of this judgment.

Counsel for the City make no claim that the verdict was excessive, and apparently admit the sufficiency and timeliness of the notice served on the City as per charter requirements. Their sole contention being that the slippery and icy condition of the sidewalk, and the length of time such condition existed, was insufficient to render the City liable on constructive notice.

Plaintiff was on her way to visit her husband, a patient at St. Joseph's hospital. She parked her car on East 18th avenue between Franklin and Humboldt streets, east of the alley entrance that goes into the hospital. She got out of her car, walked across the parking to the sidewalk, and proceeded west on the sidewalk just a few feet back from the alley where her right foot slipped and she fell on her right hip. She stated the condition of the sidewalk was very slippery with ice; that the ice was old, accumulated ice; that the weather was very cold; that the condition of the surface of the alley was icy and slippery; and upon cross-examination, stated that she did not see the ice until after she fell, as she was looking straight ahead and did not recall having observed the ice, although she knew the ice was there; she further stated that it was not conspicuous; and that all the sidewalks everywhere in that immediate vicinity were slick at the time. The witnesses, who assisted her at the time of the accident and helped to get her into the hospital, testified that the condition of the sidewalk where she was lying was very icy and slick; and that they had no idea how long the ice had been there. One witness stated that the cause of the slippery condition was ice and a slight covering of dry snow, and further stated that it would be hard to tell if it was slippery until you stepped on it.

A witness for defendant testified that on the morning of the 20th of November, and on the morning of the 21st of November, there was no ice on the sidewalk; that he had cleaned the sidewalk with a broom on the 21st day of November as an accommodation to the landlady owner of the adjacent premises, who was away at the time. Another witness from the United States Weather Bureau testified as to weather conditions from the 18th through the 21st day of November, generally to the effect that the weather was cold at times and that there was slight traces of snow and some melting.

The trial court in its oral decision stated that the evidence showed that the sidewalk where plaintiff fell was covered with ice and was extremely slippery; that there was some evidence before the court that there was no ice on the sidewalk, however, the direct and positive evidence was to the effect that the sidewalk was covered with ice and extremely dangerous and slippery, and that the main question in the case was whether or not the ice had been there long enough for the City to be charged with constructive notice, since there was no evidence that it had direct notice of the dangerous condition; and further, that in this case, the condition could not have existed longer than two days and some hours, because all of the evidence was to the effect that there could not have been any ice on the sidewalk from natural causes before the 19th day of November; then the court made its finding, stating that the evidence shows the City should have discovered the ...