Kelley v. Park View Apartments, Inc.

• Decision Date: 05 November 1958
• Citation: 330 P.2d 1057,215 Or. 198
• Parties: , 71 A.L.R.2d 784 John H. KELLEY, Respondent, v. PARK VIEW APARTMENTS, Inc., a corporation, and Myrtle Brown, Appellants.
• Court: Oregon Supreme Court

Page 1057

330 P.2d 1057

215 Or. 198, 71 A.L.R.2d 784

John H. KELLEY, Respondent, v. PARK VIEW APARTMENTS, Inc., a corporation, and Myrtle Brown Appellants.

Supreme Court of Oregon, In Banc.

Argued Sept. 4, 1958.

Decided Nov. 5, 1958.

Earle P. Skow and James Arthur Powers, Portland, argued the cause and filed a brief for appellants.

Dwight L. Schwab, Portland, argued the cause for respondent. On the brief were Hutchinson, Schwab & Burdick, Portland.

ROSSMAN, Justice.

This is an appeal by the two defendants from a judgment in the sum of $10,629.10 which the circuit court entered against them in favor of the plaintiff for an injury which he sustained March 6, 1956, when he fell upon a public sidewalk on Southeast 18th avenue, Portland, in front of an apartment house in which he lived and which is owned by the defendant-appellant, Park View Apartments, Inc. The other defendant-appellant, Myrtle Brown, is the manager of the apartment house. The complaint charged the defendants with negligence. Park View Apartments, Inc., owns and operates nine structures, which with lawns cover four blocks. Plaintiff's fall occurred at 8:30 o'clock in the morning near the entryway of the apartment house in which he lived. He swore that he slipped upon a thin patch of ice upon the public sidewalk, and claims that the ice formed during the night from moisture that had seeped down from a remnant of snow which remained upon a sloping lawn of the apartment house property.

Defendants' brief submits eight assignments of error. The second charges that the circuit court erred when it denied defendants' motion for a directed verdict. We will now consider it.

The apartment house in which the plaintiff and his wife resided was seven feet or so west of the sidewalk line and 70 inches higher than 18th avenue. A sloping lawn descended from the apartment house level to this sidewalk. An entryway on the 18th avenue side of the structure served, not only the plaintiff's apartment, but also others. From it six concrete steps led to the sidewalk. On both sides of the steps there were concrete curbs of the familiar kind. To the right (south) of one who descended the stairway there was an iron handrail. The latter was supported by two uprights, the lower ends of which were imbedded in the south curb.

The plaintiff claims that in the afternoon of March 5 moisture from the remnant of snow that remained on the sloping lawn next to the south side of the steps trickled down upon the public sidewalk where, in the course of the night, it froze into ice. He swore that March 6, at 8:30 a. m., as he left for his work he slipped upon a small patch of ice upon the public sidewalk at that place.

Several days prior to the plaintiff's injury, snow had fallen in Portland, but the evidence does not disclose the day when it fell nor its depth. Mrs. Edna Kelley, the plaintiff's wife, gave virtually the only testimony which revealed the depth of the snowfall. After describing the snow as 'wet', she continued:

'Q. Was there enough to cover the sidewalks? A. Well, apparently.

'Q. Well, was there * * * A. Yes.

'Q. There was. All right. How deep did it cover the sidewalks? A. Well, I didn't measure it.

* * *

* * *

'Q. Would it be fair to say it would be an inch? A. I couldn't say.

* * *

* * *

'Q. And do you remember how long the snow lasted before it started to melt? I am referring to this time of March 6th. A. At March 6th I recall that there was no snow anywhere along our bank except by our steps.'

By the expression 'our bank' Mrs. Kelley referred to the sloping lawn which extended from the apartment house level to the public sidewalk.

After the snow had fallen, L. W. Cook, a janitor in the employ of the defendant-appellant Park Avenue Apartments, Inc., removed it from the concrete steps and cast it to the south of the steps; that is, beyond the side equipped with the iron handrail.

Mrs. Kelley, a few minutes before 8:00 o'clock the morning of the accident, left the apartment in which she and her husband lived for her place of employment, about a block and a half from the apartment house. She departed by the entryway which we have described and descended the steps. She then turned to the right, the same as the plaintiff did a half hour later when he left for his work. She saw no ice or snow on the sidewalk or steps and did not slip. We quote from her:

'Q. And how about the bank? Was there any ice or snow on the bank? A. No.'

It is agreed that the steps were free of ice, snow and moisture on the morning of the 6th. Mrs. Kelley testified that on March 5, at 5:00 p. m., when she returned to the apartment from her place of employment there was no snow upon the sidewalk or upon the bank except a residue 'right next to the stairway' by the iron handrail. The weather on March 5, according to her, was 'clear and warm.'

After her husband's injury Mrs. Kelley returned immediately to her home and shortly examined the place where he fell. She found a small patch of ice on the sidewalk at that place. According to her, 'it came right down where this snow had been piled.' By the expression 'where this snow had been piled' she referred to the fact that after the snowfall employees of the apartment house who cleared the steps cast the snow upon the side of the inclined lawn next to the handrail. No one indicated the amount of the snow which was cast.

The public sidewalk was six feet wide and sloped downward an inch and a half toward the street curbstone. It also sloped to the north.

L. W. Cook, the janitor previously mentioned, as a witness for the plaintiff, testified that at 7:00 a. m. on March 6 he descended the steps and walked upon the public sidewalk where an hour and a helf later the plaintiff fell. He swore that his foot slipped on the sidewalk immediately adjacent to the place where the step's handrail terminated. He then examined the sidewalk and found a thin covering of ice which he described as follows:

'* * * the ice started right at the corner of the steps and seemed to run across the sidewalk at an angle--not much of an angle but a little angle there, and I guess it was about from--oh, I would say six or eight inches wide at one end and at the closest to the steps, I don't know, it would have been two or three inches wide or maybe one.'

It was upon that patch of ice that the plaintiff slipped.

Mrs. Kelley drew upon a photograph of the stairs a representation of moisture which she swore she saw upon the sidewalk when she returned home in the evening of Mrach 5. It extended across the walk from the base of the staircase rail to the other side of the walk. It corresponds in size with the description given by the janitor that we quoted. As thus depicted, the patch of ice was possibly two or three inches wide near the corner of the stairs where the handrail terminated and broadened to six or eight inches at the other edge of the sidewalk. The ice, according to Mrs. Kelley, was 'very thin, transparent,' and added, 'you had to look' in order to notice it.

Mrs. Kelley testified that on the morning of the 6th no snow remained upon the 18th avenue sidewalk nor upon the sloping lawn except a remnant adjacent to the south side of the steps beyond the handrail. The evidence gives scant impression of the size of that remnant, as we see from the following testimony given by her:

'Q. And as I understood you to say, on the 5th all of the snow had melted off but one little bunch? A. That's right.

'Q. And that is the way it was when you went to work on the morning of the 5th? A. On the morning of the 5th, yes, sir.

'Q. Yes. And it hadn't changed its condition any although it had been warm all day long, when you came home? A. Well, naturally, I suppose it had melted some.

'Q. Well, it isn't what you suppose. I am asking you, Mrs. Kelley. A. Sure, it had melted some.

'Q. I see; but it hadn't melted it? A. No.'

Mr. Cook testified that at about 7:20 a. m. of March 6, he began to throw rock salt with which the defendant-appellant Park View Apartments had provided him 'on the sidewalk in front of the apartment which I lived in and Mr. Brown.' Mr. Brown is the husband of the defendant-appellant Myrtle Brown. Neither Cook's apartment nor the Browns' faces on 18th. Cook testified that shortly after he had begun to scatter selt, the defendant-appellant Mrytle Brown told him that 'there was no use putting salt on because the sun would take the ice away in a short time.' He thereupon discontinued scattering salt. According to him, he told Mrs. Brown at that time that 'it was slippery on 18th street and it was slippery in the back and on 16th street.' He did not, however, tell Mrs. Brown of the ice which he had encountered in front of the plaintiff's apartment.

We have not mentioned the testimony given by the plaintiff. Our omission has been due to the fact that he has very poor eyesight and made no effort to describe the ice upon which he fell. He explained:

'I have no front vision, just side vision. It can't see straight ahead at all. I have side vision only. I can't read.'

After he had fallen he groped with his hands and thereby encountered the icy area which caused his fall.

We see from the foregoing that alongside the south curb of the steps a remnant of snow remained on the afternoon of March 5 and the morning of the 6th. The above narrative also indicates that the ice upon which the plaintiff slipped was upon the public sidewalk below the remnant of snow. A jury could reasonably infer, so we believe, that the moisture which froze into ice by the morning of March 6 came from the melting remnant and that the latter included snow which the defendants' janitors had cast there while cleaning the steps.

The parties seem to agree that an adjoining landowner owes no duty to keep a public sidewalk free from a natural accumulation of snow and ice, but that he has a duty to use reasonable care to avoid increasing the danger by causing an unusual accumulation of snow...