Kalman v. W. U. Tel. Co.

• Citation: 390 P.2d 724
• Decision Date: 02 April 1964
• Docket Number: No. 3215,3215
• Parties: Mary KALMAN, Appellant (Plaintiff below), v. The WESTERN UNION TELEGRAPH COMPANY, Herman Pasternack, Morris Bernstein, Esmond F. Graber, and Gerald J. Veta, Appellees (Defendants below).
• Court: Wyoming Supreme Court

Page 724

390 P.2d 724

Mary KALMAN, Appellant (Plaintiff below), v. The WESTERN UNION TELEGRAPH COMPANY, Herman Pasternack, Morris Bernstein, Esmond F. Graber, and Gerald J. Veta, Appellees (Defendants below).

No. 3215.

Supreme Court of Wyoming.

April 2, 1964.

Roncalio, Graves & Smyth, Charles E. Graves, Cheyenne, for appellant.

Ferrall, Bloomfield & Lynch, Bard Ferrall and C. N. Bloomfield, Jr., Cheyenne, for appellees.

Before PARKER, C. J., and HARNSBERGER, GRAY, and McINTYRE, JJ.

Mr. Justice McINTYRE delivered the opinion of the court.

This case involves a claim for damages suffered by plaintiff, Mary Kalman, in a fall caused by a patch of ice on the sidewalk in front of premises occupied by the defendant Western Union Telegraph Company and allegedly owned by the defendants Herman Pasternack, Morris Bernstein, Esmond F. Graber and Gerald J. Veta. Following the presentation of evidence to a jury, the court directed verdicts for all of the defendants. Plaintiff has appealed.

Our inquiry is primarily concerned with whether or not there was substantial evidence of negligence on the part of the defendants or any of them. Two theories of such negligence are advanced by the plaintiff, as appellant. They are:

(1) That an electrical defect in Western Union's electric sign caused snow accumulated on top of the sign box to melt, run down onto the sidewalk and then freeze in the form of ice, which caused the accident.

(2) That the defendant Western Union, by virtue of violating an ordinance requiring sidewalks to be kept clean of snow and ice, was negligent per se and therefore liable for plaintiff's injuries.

Defective Sign

There was undisputed evidence that the Western Union sign had a short or electrical defect, and there was further testimony that such a defect would be likely to cause the dissipation of heat when the sign was operating.

However, several employees of Western Union testified that the condition of the sign was such that whenever the sign was turned on it would immediately blow a fuse or the circuit breaker, which would allow no electricity into the sign and consequently no heating. This condition was described as existing from Thanksgivingtime, and according to the testimony the sign had not been in operation between Thanksgiving and the time of the accident on December 11, 1961. There was nothing in the evidence to contradict this testimony.

The most then that can be said for plaintiff's evidence is that it tended to show merely this: If the sign had been operating, it could have resulted in a heating which might have melted snow, and this in turn could have frozen on the sidewalk and caused the accident.

Obviously, such evidence fails to establish a prima facie case of negligence against any of the defendants, because there was no evidence the sign was operating, with electricity in it, and in fact the only evbidence in that regard indicated otherwise. Also, there was no evidence that there was in fact, immediately prior to the accident, a melting of snow from on top of the sign. Moreover, none of the witnesses who testified about a patch of ice on the sidewalk actually fixed its location as under the sign.

Even the plaintiff herself admitted she could not fix the location of the patch of ice and she had no knowledge where it came from. One of her witnesses said the patch was close to the building but he did not pay much attention to it in relation to the sign. He said it 'could have' been there. The only other witness testifying on the subject said the patch was a foot or so from the building but she could not pin it down more specifically. She testified she had not looked at the sign so could not say whether snow had ever accumulated on its top.

Counsel for Mrs. Kalman complains because plaintiff was not permitted to introduce into evidence a picture taken several weeks after the accident, which supposedly showed the melting of snow on top of the sign. Not only was the picture taken after the accident and after a subsequent snow, but the witness who took it admitted he did not know whether the sign was in working condition, and he did not know whether the melting of snow on top of the sign was a result of the operation of the sign or the natural melting of snow from the elements.

The picture was properly excluded. Actually, the words of the witness aptly illustrate not only a good reason for excluding the picture but also the reason why plaintiff's evidence was insufficient to make out a case of negligence. The witness said he took the picture to show what conditions were 'possible.' Likewise, plaintiff's counsel offers us only a possible explanation for the presence of a patch of ice on the sidewalk, with no evidence to support his theory as to how or when it got there.

Mere conjecture is never sufficient to establish liability on the part of a defendant, for injuries claimed to have been received by a plaintiff as a result of defendant's negligence. O'Keefe v. Cheyenne Chamber of Commerce, 56 Wyo. 170, 105 P.2d 279, 285; Gordon v. Clotsworthy, 127 Colo. 377, 257 P.2d 410, 411, 49 A.L.R.2d 314; In re Hayden's Estate, 174 Kan. 140, 254 P.2d 813, 817-818, 36 A.L.R.2d 1278; Johnson v. Brown, 77 Nev. 61, 359 P.2d 80, 82.

Cheyenne City Ordinance

This brings us to a consideration of a city ordinance which was in effect at the time of the accident, and which is now cited as Cheyenne, Wyo., Code, Ch. 40, Art. 1, § 40-8 (1963). It provides:

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