City of Linton v. Jones
| Citation | 130 N.E. 541,75 Ind.App. 320 |
| Decision Date | 07 April 1921 |
| Docket Number | No. 10744.,10744. |
| Parties | CITY OF LINTON v. JONES. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Greene County; Thos. Van Buskirk, Judge.
Action by Maggie E. Jones against the City of Linton. Judgment for plaintiff, and defendant appeals. Affirmed.Henry Bordenet, of Linton, for appellant.
A. M. Beasley, of Linton, for appellee.
Appellee filed her complaint against appellant to recover damages on account of personal injuries alleged to have been received by reason of the latter's negligence in failing to use due care to keep a certain sidewalk within its corporate limits in a reasonably safe condition. Issues were joined by an answer in general denial, after which the cause was submitted to a jury for trial, resulting in a verdict and judgment in favor of appellee. Appellant filed a motion for a new trial, which was overruled, and this action of the court is made the basis of the only error assigned on appeal.
Appellant contends that the verdict of the jury is not sustained by sufficient evidence and is contrary to law. As preliminary to a consideration of the main contention under these reasons for a new trial, we note that the condition which the evidence tends to show rendered the sidewalk in question unsafe was caused by the same being covered with ice from natural causes to a thickness of about three inches, which had been cut out in places by shovels in removing the snow therefrom, leaving the same “bumpy” and slick by being “glazed over.” It has been held in this state that the law does not impose upon a city the duty of removing from its streets and sidewalks all snow that falls or ice that forms thereon. McQueen v. City of Elkhart (1895) 14 Ind. App. 671, 43 N. E. 460. Circumstances may exist, however, which make it the duty of a city to remove the same, as where water is collected and confined in an artificial channel, and thereby cast in a body upon a sidewalk, where it remains and freezes in such form as to constitute an obstruction to travel. City of Muncie v. Hey (1904) 164 Ind. 570, 74 N. E. 250.
[1] The general rule as to the liability of cities for injuries caused by the presence of snow or ice on the sidewalks thereof, as gathered from the best-reasoned decisions, seems to be that, while a city is not liable for injuries arising from a general slippery condition of a sidewalk, made so from an accumulation of snow or ice through natural causes, nevertheless liability may exist where such snow or ice has been so changed in form from its original condition as to become an obstruction to travel by reason of being rough and uneven. Evans v. City of Concordia, 74 Kan. 70, 85 Pac. 813, 7 L. R. A. (N. S.) 933, 11 Ann. Cas. 281;Storm v. City of Butte, 35 Mont. 385, 89 Pac. 726;Huston v. City of Council Bluffs, 101 Iowa, 33, 69 N. W. 1130, 36 L. R. A. 211;Albritton v. Kansas City, 192 Mo. App. 574, 188 S. W. 239;Tobin v. City of Waterloo, 131 Iowa, 75, 107 N. W. 1031;Gregg v. Town of Springville (Iowa) 174 N. W. 23;Abbott v. City of Springfield (Mo. App.) 210 S. W. 443;Reedy v. St. Louis, etc., Ass'n, 161 Mo. 523, 61 S. W. 859, 53 L. R. A. 805;Griffin v. City of Marion, 163 Iowa, 435, 144 N. W. 1011;Livingston v. City of St. Joseph, 174 Mo. App. 636, 161 S. W. 304;Stone v. Inhabitants, etc., 100 Mass. 49;Sankey v. Chicago, etc., R. Co., 118 Iowa, 39, 91 S. W. 820;Mareck v. City of Chicago, 89 Ill. App. 358;Broburg v. City of Des Moines, 63 Iowa, 523, 19 N. W. 340, 50 Am. Rep. 757.
[2][3] In the instant case we are of the opinion, that whether the condition of the sidewalk at the place appellee received her injuries was in such condition as to render appellant liable therefor was a question for the jury. Its decision in that regard was in favor of appellee, and we are bound thereby.
[4][5] But appellant's chief contention with reference to the sufficiency of the evidence to sustain the verdict is based on a claim that the evidence fails to show that it had either actual or constructive knowledge of the unsafe condition of the sidewalk in question prior to the time appellee received her alleged injuries. We are of the opinion that there is no evidence which can be said to show that appellant had any actual knowledge of such unsafe condition. The question as to whether it had constructive knowledge of such condition is a more serious one. The jury evidently found that appellant had such knowledge, and, if there is any direct evidence tending to establish such fact, or facts from which it may be reasonably inferred that appellant had such knowledge we must hold the evidence sufficient in that particular. In determining whether appellant had such knowledge, it must be borne in mind that it was its duty to use active vigilance with reference to its streets, and if an unsafe condition had existed therein for such a length of time that, considering the attending circumstances, appellant or its officers might have obtained knowledge of it by the exercise of a reasonable degree of diligence in giving attention to the condition of its streets, knowledge of such condition will be implied. City of Ft. Wayne v. Patterson (1891) 3 Ind. App. 34, 29 N. E. 167.
[6][7] The evidence tends to show that appellee received her alleged injuries on January 30, 1918; that for several weeks prior thereto it had been snowing at intervals; that the snow at times would melt to some extent, and the water therefrom would then freeze, thereby forming ice on the streets and sidewalks; that snow would again fall and cover the ice thus formed; that during such period ice had accumulated in this way on the sidewalk on Vincennes street in the city of Linton in front of the property of one Henry Klink, although he had removed the snow therefrom at different times; that on the date appellee received her alleged injuries the accumulation of ice on said sidewalk was about three inches thick, and had an uneven surface, described by appellee as “bumpy” and “glazed over”; that such condition had been caused by the removal of the snow with a shovel, whereby the ice was cut into deeper at some places than at others; that it had snowed previous to the morning of the day on which appellee was injured; that said Klink removed the snow from said sidewalk about 9 o'clock of said day, and left the same in the condition described; that late in the afternoon of January 30, 1918, appellee was passing along said sidewalk, and in attempting to avoid a slick place thereon slipped and fell on her right shoulder; that appellant had a street commissioner at said time, and for several weeks prior thereto, whose duties required that he keep the streets and sidewalks of said city free from obstructions...
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