Evans v. The City of Concordia

• Decision Date: 09 June 1906
• Docket Number: 14,617
• Parties: SILAS S. EVANS v. THE CITY OF CONCORDIA
• Court: Kansas Supreme Court

85 P. 813

74 Kan. 70

SILAS S. EVANS v. THE CITY OF CONCORDIA

No. 14,617

Supreme Court of Kansas

June 9, 1906

Decided January, 1906.

Error from Cloud district court; WILLIAM T. DILLON, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

MUNICIPAL CORPORATIONS--Defective Sidewalk--Ice Formed from Natural Causes. In an action against a city for injuries from a fall upon a sidewalk covered with ice and snow, where it appears from plaintiff's opening statement that the ice, which accumulated from natural causes, was less than an inch in thickness, and that plaintiff knew when he went upon it that the ice was smooth and slippery, and that he fell by reason of its smooth and slippery condition, and no other defect is claimed, a judgment for costs in favor of the city will be upheld.

Theodore Laing, for plaintiff in error.

A. L. Wilmoth, and Earl V. D. Brown, for defendant in error.

PORTER J. All the Justices concurring.

OPINION

PORTER, J.

In an action for damages for injuries received in a fall upon an icy sidewalk the trial court rendered judgment in favor of the city for costs upon the opening statement to the jury of the facts which plaintiff expected to prove. Error is predicated upon this ruling of the court.

In his statement plaintiff followed the averments of his petition, which were in substance that on the night of January 19, 1904, and on the following day, as the result of rain, sleet and snow flurries, the walks of the city became covered with a sleety ice to the depth of less than an inch and more than half an inch, which was then and continued to be smooth and slippery and difficult and dangerous to walk upon; that the walks were permitted by the city to remain in this condition until the evening of the 25th of January, when plaintiff, who was walking with due care because he knew that the sidewalk was icy, slipped and fell by reason of the icy, slippery condition of the sidewalk in that particular place.

When ice and snow accumulate from natural causes upon the sidewalks of a city, and a person is injured by a fall occasioned by their smooth and slippery condition, is the city liable in an action for damages? This is the sole question in the case. No other defect in the sidewalk is claimed. The same question has frequently been before the courts, and with almost entire unanimity it has been held that where the injuries were caused wholly by reason of the smooth and slippery condition of the ice and snow there was no liability for negligence on the part of the city. A distinction has been observed in many cases where the ice or snow has been allowed to form in ridges or uneven places on the walk amounting to an obstruction; but smoothness and slipperiness, being natural conditions, have almost universally been held not sufficient to cast responsibility upon the city. The reasons for the distinction are well stated in Smyth v. Bangor, 72 Me. 249, as follow:

"In this cold climate, where ice and snow cover the whole face of the earth for a considerable portion of the year, such an inconvenience ought not, and rightfully cannot, be regarded as a defect. No amount of diligence can keep our streets and sidewalks at all times free from ice and snow; and the latter, when trodden smooth and hard, is nearly, and sometimes quite, as slippery as ice; and travelers will often slip and fall when no one is to blame. To hold towns and cities responsible for such accidents would practically make insurance companies of them. A block of ice may constitute a defect the same as a block of wood or stone. So a ridge or hummock of ice, or snow, may constitute a defect the same as a pile of lime, or sand, or mortar, upon the sidewalk would. But we regard it as now well settled that mere slipperiness of the surface of a highway or sidewalk, caused by either ice or snow, is not a defect for which towns and cities are liable." (Page 250.)

In Gilbert & Wife v. City of Roxbury, 100 Mass. 185, a case like the one at bar, the action of the trial court in directing a verdict for defendant was sustained. In Stone v. Inhabitants of Hubbardston, 100 Mass. 49, it was held that mere slipperiness of the surface of a highway properly constructed, and of no unusual slope, was not a defect which would render the municipality liable any more than moisture or mud upon a flagstone or sidewalk. It was said in that case:

"But ice, which by reason of constant or repeated flowing of water, trampling of passengers, or any other cause, assumes such a shape as to be an obstacle to travel, may constitute such a defect." (Syllabus.)

To the same effect see: Chamberlain v. The City of Oshkosh, 84 Wis. 289, 54 N.W. 618, 19 L. R. A. 513, 36 Am. St. Rep....