Donald v. Moses

• Citation: 254 Minn. 186,94 N.W.2d 255
• Decision Date: 16 January 1959
• Docket Number: No. 37479,37479
• Parties: Raymond B. DONALD, Respondent, v. Felix MOSES et al., Defendants, City of Minneapolis, Appellant.
• Court: Supreme Court of Minnesota (US)

Page 255

94 N.W.2d 255

254 Minn. 186

Raymond B. DONALD, Respondent, v. Felix MOSES et al., Defendants City of Minneapolis, Appellant.

No. 37479.

Supreme Court of Minnesota.

Jan. 16, 1959.

Syllabus by the Court

1. Assumption of risk must be free and voluntary. In that respect it is to be distinguished from contributory negligence. One may assume the risk even though he is not negligent in deciding to proceed forward, and even though he exercises reasonable care in the manner in which he proceeds. One may not assume the risk where there is no reasonable alternative but still be considered to be contributorily negligent as where a reasonable man under the circumstances would not proceed forward.

2. If it clearly appears from the plaintiff's words or conduct that he does not consent to relieve the defendant of the obligation to protect him, the risk will not be assumed, and the risk is not assumed where the conduct of the defendant has left the plaintiff no reasonable laternative route.

3. Where there is a reasonably safe alternative way open, the plaintiff's choice of the dangerous way is a free one and may under such circumstances amount to both contributory negligence and assumption of risk.

4. While plaintiff did not question errors in the court's instructions before the case was submitted to the jury, he did raise them in the motion for a new trial and thereby did all that was necessary to comply with provisions of Rule 51, Rules of Civil Procedure, where errors occurred with respect to fundamental law or controlling principle.

5. A city has a duty to keep its sidewalks in a reasonably safe condition for the traveling public, and this duty remains with the city at all times and cannot be shifted to private property owners.

6. The power to ask property owners to clear the sidewalks is a means which the city has available to it to perform its duty. But it is to be observed that if the city takes advantage of this means, the duty has been delegated to owners and occupants as municipal agents only.

7. While the trial court properly admitted evidence as to the number of miles of sidewalk in the defendant city as bearing on the question of defendant's negligence in failing to remove the snow, it was in error in excluding plaintiff's offer in rebuttal of Minneapolis City Charter and Ordinances (Perm. ed.) c. 4, § 5(21), providing that the city might ask property owners to aid in performing its task.

Charles A. Sawyer, City Atty., G. V. Johnson, Asst. City Atty., Minneapolis, for appellant.

Bonner, Bonner & Clements, Minneapolis, for respondent.

NELSON, Justice.

Raymond B. Donald, plaintiff, commenced an action to recover for personal injuries consisting primarily of a fractured left arm alleged to have been sustained by him in a fall on a public sidewalk of the defendant city of Minneapolis. He named as other defendants in the action Felix Moses and Rebecca Moses, as executors of the estate of Meyer Moses, deceased, (Meyer Moses at the time of death being an abutting property owner) and Emil Babe Saliterman, a lessee of the Moses property. Plaintiff alleged that negligence on the part of each of the defendants had resulted in an accumulation of ice and snow on the public sidewalk adjacent to the Moses lot and the building erected thereon. The defendant city answered plaintiff's complaint, denying negligence on its part and as separate defenses affirmatively asserted plaintiff's assumption of risk and contributory negligence.

Plaintiff, at the time of trial, dismissed the actions as to all defendants except the city of Minneapolis. The case was tried before a jury, and a verdict was returned in favor of the defendant city. Plaintiff thereafter moved for a new trial. The trial court granted plaintiff's motion and in a memorandum attached to and made a part of its order stated that the new trial was granted solely on the ground of errors of law occurring at the trial and specified the errors. The defendant city appeals from the trial court's order pursuant to M.S.A. § 605.09(4), seeking a reversal of the order and a reinstatement of the jury verdict.

Briefly, the facts may be stated as follows: The plaintiff is a dentist residing at 3833 Lyndale Avenue South in Minneapolis and maintains offices in downtown Minneapolis. In the forenoon on the date of the accident he proceeded from his home by bus to the intersection of Nicollet and 38th Street and alighted on the southwest corner of the intersection. His intention was to go to the meat market operated by Gerald W. Feiker at 3747 Nicollet Avenue South. He walked north across 38th Street and then proceeded east across Nicollet Avenue to the northeast corner of the intersection. The Feiker market was the fourth business location to the north on the northeast corner. Plaintiff states that as he approached the northeast corner of the intersection he observed the icy condition of the sidewalk and the snow but nevertheless stepped onto the sidewalk and proceeded across the icy portions. In crossing the icy portion, he slipped and fell. He has fixed the place where he fell as being about 4 feet from the curb line and 8 feet from the building line and 4 feet from the corner mailbox which he had to pass in going north on the east side of Nicollet Avenue. Plaintiff said that after stepping onto the sidewalk at the northeast corner of the intersection he took 3 or 4 steps east and then turned northerly. After passing the mailbox by 2 or 3 feet, his feet suddenly went out from under him and left him lying flat on his stomach, facing northerly.

Plaintiff and his witness Gerald W. Feiker testified that on the date of the accident the sidewalk where plaintiff fell was icy and slippery; that the condition was due to lack of snow removal in front of certain buildings, the ice in those spots being from 2 to 3 inches thick, with ruts and hummocks on the surface. There was testimony that there had been no snow removal in front of the building where plaintiff fell, for at least 30--possibly 60--days. The record indicates that where buildings had occupants along the streets in that immediate vicinity, such occupants shoveled in front of their own stores or other business places and cleared the walk to the curb so that customers approaching would have a clear, open path upon which to walk. However, plaintiff fell in front of an unoccupied building and the rough and icy condition there extended from the building to the curb line. The sidewalk directly in front of the dress shop, the bakery, and the meat market had been shoveled. Two photographs were received in evidence to portray the condition of the sidewalk as it existed at the time plaintiff fell.

Evidence was introduced showing weather condition, at the time, and for a full month immediately preceding the accident, but this has not been printed in the record. The record fails to disclose any evidence of safer alternative routes which the plaintiff might have taken in going to the Feiker market. The city was permitted to introduce testimony to establish the number of miles of sidewalk under its control. This established that there were at the time 9,919,905.6 lineal feet of sidewalk, which would measure on the average 6 feet in width and produce 59,519,433.6 square feet of sidewalk.

The plaintiff sought to introduce Minneapolis City Charter and Ordinances (Perm. ed.) c. 4, § 5(21), in order to rebut the inferences created by the city's testimony emphasizing the enormity of the task of clearing the city streets and sidewalks of snow and ice. The plaintiff's offer was overruled. The charter provision provides the method whereby the city may compel the owner or occupant to remove snow, ice, and other rubbish from the sidewalks, streets, or alleys, and reads as follows:

'Twenty-first.--To compel the owner or occupant of buildings or grounds to remove snow, ice, dirt or rubbish from the sidewalk, street or alley opposite thereto, and compel such occupant or owner to remove from the lot owned or occupied by him, all such substances as the Board of Public Welfare shall direct; and in his default to authorize the removal or destruction thereof any some officer of the city, at the expense of such owner or occupant. Also to compel the owners of low grounds where water is liable to collect and become stagnant to fill or drain such low places, and in their default to authorize such filling or draining at the expense of such owner or owners.

'Provided, That said Council may require snow and ice to be removed, as aforesaid, throughout such districts in said city as it shall direct, and may make the expense of any removal or destruction of any such substances which said Board of Public Welfare may direct to be removed, and the expense of filling or draining any such low place, a lien upon the property from which said substances are removed or on which destroyed, or on which said low grounds are filled or drained, and may make a special assessment for the same to be collected as other special assessments are collected.'

At the time of the trial court's ruling on the introduction of the aforesaid charter provision, the court had granted a motion to reopen in order that the plaintiff might have an opportunity to make the offer. The offer, however, was denied and the following colloquy between plaintiff's counsel and the court occurred 'Mr. Clements: Am I to understand the Court that I cannot argue that the City has the right to ask such an ordinance compelling the occupants to clean their sidewalk?

'The Court: That is right, you can't argue that.

'Mr. Clements: And then I understand the Court that I cannot argue this ordinance in any respect?

'The Court: That is right.

'Mr. Clements: Exception, please.'

The court in its instructions to the jury said:

'The Court has heretofore advised you of the issues in this case. The plaintiff * * * claims that the defendant was negligent. The defendant denies any negligence on its...