Hale v. City of Anchorage, 334

• Decision Date: 24 February 1964
• Docket Number: No. 334,334
• Parties: Lula D. HALE and Dale Hale, Husband and Wife, Appellants, v. The CITY OF ANCHORAGE, a Municipal Corporation, Appellee.
• Court: Alaska Supreme Court

Page 434

389 P.2d 434

Lula D. HALE and Dale Hale, Husband and Wife, Appellants, v. The CITY OF ANCHORAGE, a Municipal Corporation, Appellee.

No. 334.

Supreme Court of Alaska.

Feb. 24, 1964.

Bailey E. Bell and James K. Tallman, Anchorage, for appellants.

Harland W. Davis and Clyde C. Houston, Anchorage, for appellee.

Before NESBETT, C. J., and DIMOND and AREND, JJ.

DIMOND, Justice.

Appellant, Lula Hale, brought this action for personal injuries after she slipped and fell upon ice on a public sidewalk in the City of Anchorage in December 1958. In a brief oral decision at the end of the trial the judge found that appellant was contributorily negligent, and directed entry of judgment for the city. More than one year after the trial, a formal judgment was entered by a successor judge--the trial judge in the meantime having been retired for disability.

Before reaching the main issue in this case, there are two other points to consider. Appellant first contends that since formal findings of fact and conclusions of law were never entered by the judge who tried the case, the successor judge had no authority to enter a judgment, and therefore a new trial should be ordered. We do not agree. The oral decision of the trial judge is sufficient to indicate the factual basis for his conclusion that the city should prevail, and therefore meets the requirements of Civ.R. 52(a). ¹ The filing of a transcript of the oral decision was equivalent to the filing of findings of fact and conclusions of law. If by reason of disability a judge before whom an action has been tried is unable to carry on after the findings and conclusions have been filed, a successor judge is authorized by Civ.R. 63(c) to perform the remaining duties, which include the entering of a judgment. ² The entry of judgment in this case by the successor judge was entirely proper. A new trial is not required.

We agree with appellant's second contention--that the trial judge erred in finding that appellant was contributorily negligent. She slipped and fell on a portion of a sidewalk covered with ice that had a little fresh snow on top. She and her husband had crossed the area once before with safety in going to a store, and she fell while they were crossing the area again to reach their automobile. At the place where the accident occurred, the sidewalk sloped toward the street because of a curbcut for a driveway giving vehicles access from the street to adjacent property. Appellant and her husband both knew that the area where she fell was slippery, but they were obliged to cross it in order to get back to their car. They had a choice of staying on the sidewalk portion of the area, or walking out in the street. They chose the sidewalk, and appellant's husband held her arm while they were walking. They noticed that other pedestrians were crossing the area involved--some by remaining on the sidewalk and others by walking in the street.

Under these facts the judge held that because appellant had deliberately walked where she did, knowing that the spot was icy, she was negligent. This is not the law. Mere knowledge of the icy condition before passing over it does not establish negligence. ³ The test is whether appellant, knowing of the icy condition, reasonably believed, and had a right to believe that she could cross the area safely by the exercise of ordinary care. ⁴ The only inference that reasonably can be drawn from the facts is that appellant entertained and had a right to entertain such a belief. Appellant had crossed the same area earlier with safety. Other pedestrians were crossing it without injury. A reasonably prudent person had a right to expect that he could make the crossing without injury. It is true, as appellee points out, that the judge stated that appellant had noticed that someone had previously fallen in the particular spot. But here the judge was mistaken. Appellant was asked by appellee's counsel whether she had stated in a pre-trial deposition that she had noticed a child fall, and she answered that she did not remember the child falling nor did she remember making such a statement. The matter was not pursued further. There was no evidence that appellant had been anyone else fall in the area where she fell.

Nor are there any facts from which it might be inferred that appellant's manner of crossing was negligent. She had tape on her shoes to give protection from slipping, and at the time she fell her husband was holding her arm. There was no evidence from which it could be reasonably inferred that appellant's injury resulted from conduct on her part which fell below the standard to which she ought to have conformed for her own safety. ⁵ A finding of contributory negligence was clearly erroneous.

We now reach the principal issue in this case--whether the city is liable for appellant's injuries. The trial judge made no explicit finding that the city was negligent. But it appears clear enough that this is what he intended; for he stated that he didn't think the city was 'quite as diligent as it should have been in maintaining that particular area of the sidewalk', and his finding of contributory negligence on appellant's part postulates a finding of negligence on the part of the city. ⁶ In any event, it is unnecessary to remand the case for another trial and determination on the issue of the city's negligence, because we find that the city is not liable under the undisputed facts of this case.

In a case which arose while Alaska was a Territory, the federal Court of Appeals for the Ninth Circuit, which then acted as Alaska's appellate court, established a rule defining municipal liability for injuries caused by snow and ice on sidewalks. In Gilfilen v. City of Seward ⁷, the court said:

'There appears to be no statute or settled rule of law in Alaska in respect of cases of this nature. In the 1955 edition of A.L.R.2d under the caption 'Sidewalks' and at 13 A.L.R. 73 the subject is extensively annotated. Generally speaking, it is the rule that where liability is imposed on a city for failure to remove snow from sidewalks, the liability is predicated on negligence. In the absence of statute the law is generally that a city is not liable to pedestrians who slip on sidewalks covered with a smooth sheet of ice or snow. The weight of authority, however, is that if snow and ice are permitted to...