Kelleher v. City of West St. Paul
| Decision Date | 15 February 1935 |
| Docket Number | No. 30264.,30264. |
| Citation | 258 N.W. 834,193 Minn. 487 |
| Parties | KELLEHER v. CITY OF WEST ST. PAUL. |
| Court | Minnesota Supreme Court |
Appeal from District Court, Dakota County; W. A. Schultz, Judge.
Actions by Mabel E. Kellerher and another against City of West St. Paul. From judgments for plaintiffs, defendant appeals.
Reversed and remanded, with directions.
H. E. Stassen and Elmer J. Ryan, both of South St. Paul, and Edmund C. Meisinger, of St. Paul (Charles P. Stone, of South St. Paul, of counsel), for appellant.
Sidney A. Perkins, of St. Paul, for respondent.
In a fall upon a sidewalk in the city of West St. Paul, plaintiff, Mabel G. Kelleher, fractured both bones in her right leg near the ankle. She and her husband sued the city, alleging that the injury received by the wife was due to the neglect of the city, in that ice and packed snow had been allowed to form and remain in ridges and slopes on the sidewalk, causing her to slip and fall. The husband's suit was for consequential damages. The two actions were tried as one and a verdict returned in favor of each plaintiff. Defendant's motion in the alternative for judgment non obstante or a new trial being denied, judgments were entered on the verdicts, and defendant appeals therefrom.
The accident occurred on the sidewalk on the east side of Smith avenue in the defendant city, about 50 feet south of Annapolis street. On that corner, fronting on Smith avenue, is a grocery store and meat market 50 feet in width. South of this store is a vacant lot 28 feet in width, and south of that a hardware store. There is a cement sidewalk 12 feet wide in front of these stores and the vacant lot. The accident to Mrs. Kelleher occurred about noon on February 13, 1933. The evidence is that the temperature had been zero and lower for two or three weeks prior thereto. The day before Christmas, 1932, it had rained and sleeted, necessitating the sprinkling of ashes and sand on this and other sidewalks of the city, and on Christmas Day there was a heavy fall of snow with a sudden drop of temperature. It also appears that the snow and ice were removed from the sidewalk in front of the stores, except over the curb, but that only the loose snow was removed from the sidewalk in front of the vacant lot, and that only to the width of about 6 feet along the center of the walk. At no point in this 6-foot strip was the cement surface of the sidewalk visible.
The ice and hard snow above the cement surface was variously estimated at from 1 to 3 inches along the pathway of the 6 feet, and where this pathway joined the sidewalk in front of the grocery store. The length of the slant from the cement surface of the sidewalk, in front of the grocery store, south up to the level of the 6-foot shoveled path in front of the vacant lot, was variously estimated at from 6 to 18 inches. At the time mentioned, Mrs. Kelleher walked south on Smith avenue along the sidewalk in front of the grocery store, passed over the 6-foot path in front of the vacant lot, entered the hardware store, purchased a can of bronzing liquid, and retraced her steps north. When she came opposite the line dividing the vacant lot from the grocery store, she slipped and fell, striking on her right side. Both bones of her right leg were fractured at the ankle, involving some bones in the joint. It appears that it had been snowing that morning, but had stopped just before the accident. Some witnesses say that there was a blanket of snow, others call it an eighth of an inch snowfall. There is no dispute that she fell so that her head was about a foot west of the south wall of the grocery store, with her feet extending northwesterly.
The contentions of defendant are: (a) That the evidence does not prove actionable negligence; (b) that contributory negligence appears; (c) that the court erred in certain remarks and questions put to a witness to defendant's prejudice.
On the first proposition it has been the established law that, in this latitude, the mere slippery condition of a sidewalk because of snow and ice thereon does not show actionable negligence on the part of the municipality. Henkes v. City of Minneapolis, 42 Minn. 530, 44 N. W. 1026, 1027, where it is said: "An unbroken line of authorities hold that mere slipperiness of a sidewalk by either ice or snow is not a defect for which cities are liable; that their obligation to keep their streets in a safe condition does not extend to the removal of ice, which constitutes no other defect than slipperiness." It is true that, if a ridge or ridges of ice have formed on a sidewalk, either from faulty construction or otherwise, which may be found to be an obstruction or pitfall, and has so remained for sufficient time to impute notice to the city, liability may be found. Such were the cases of Smith v. City of Cloquet, 120 Minn. 50, 139 N. W. 141; McManus v. City of Duluth, 147 Minn. 200, 179 N. W. 906; McClain v. City of Duluth, 163 Minn. 198, 203 N. W. 776; Niemi v. Village of Hibbing, 175 Minn. 366, 221 N. W. 241. But such defects must be so rough or ridgy that that condition constitutes a menace to reasonably safe travel. We have also a case where the difference in levels occurred because of one abutting owner keeping his part of the sidewalk clear while no snow was removed from the sidewalk of the adjoining lot, thus creating an abrupt rise of from 2 to 8 inches of snow and ice from the cleared walk, which could be classified as an obstruction. Olson v. City of St. Paul, 141 Minn. 434, 170 N. W. 586.
We have also Genereau v. City of Duluth, 131 Minn. 92, 154 N. W. 664, where, on a level block, the easterly part of the sidewalk was first built and then the westerly part was laid 3 inches below the level of the first, and the two parts joined by a 12-inch slant. The plaintiff in that case came to the place in the evening when the light was dim; "a path led down to the sidewalk near the slant, and, when snow accumulated and thawed, water flowed in from this path, and also from the walk over the slant therein, forming, when it again froze, such uneven ridges and depressions that walking thereon became exceedingly dangerous, and that this condition had existed for several weeks prior to plaintiff's injury." There faulty construction of the sidewalk entered into the case and produced ridges and depressions. In Dory v. City of Duluth, 103 Minn. 154, 114 N. W. 465, a faulty construction caused a depression to form in the walk which was held to warrant the jury in holding the city liable to the plaintiff who fell because thereof. Where the city causes the dangerous condition, although it consists only in slipperiness, it is responsible, as held in Roberts v. Village of Buhl, 160 Minn. 398, 200 N. W. 354. In the instant case much was made by plaintiff in respect to the accumulation of snow on or about the curb by shoveling the snow from the walk toward the curb and by snowplows pushing the snow from the street against the curb. It might well be that there was an encroachment of part of the walk by artificial means, but such encroachment had nothing whatever to do with the conditions existing where plaintiff fell. The evidence is uncontradicted that whatever "artificial" effort had been exerted thereon had been to keep the place free of ice and snow. Every witness conceded that the little slant at that place came from wear and effort to clean off the loose snow.
The slant itself cannot, upon the evidence, be regarded as a ridge or depression creating a dangerous situation. Nor were there ridges or depressions on the slant upon which plaintiff claims she fell. She testified that when, after her fall, she was carried into the grocery store and seated so that she could see the place of the accident, she saw where her left foot, in sliding, removed the thin blanket of newly fallen snow. There was some evidence that autos, in turning on the street, went over the curb and onto the middle of the sidewalk in front of the vacant lot, and that the threads of tires were discernible in the ice and snow; but plaintiff's husband testified that these tire marks were no nearer to the place where plaintiff fell than 2 feet. Plaintiff took no notice of the condition of the sidewalk across the vacant...
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