Pollari v. Salt Lake City

• Decision Date: 06 January 1947
• Docket Number: 6942
• Citation: 176 P.2d 111,111 Utah 25
• Court: Utah Supreme Court
• Parties: POLLARI v. SALT LAKE CITY

176 P.2d 111

111 Utah 25

POLLARI v. SALT LAKE CITY

No. 6942

Supreme Court of Utah

January 6, 1947

Appeal from District Court, Third District, Salt Lake County; M J. Bronson, Judge.

Action by Mary Pollari against Salt Lake City for injuries sustained in a fall on a sidewalk. From a judgment on a jury's verdict of no cause of action, plaintiff appeals.

Affirmed.

R Verne McCullough, of Salt Lake City, for appellant.

Rawlings Wallace & Black and Clyde & Coray, all of Salt Lake City, for respondent.

Wolfe, Justice. McDonough, Pratt, and Wade, JJ., concur. Larson, Chief Justice (dissenting).

OPINION

Wolfe, Justice.

Appeal from a judgment rendered in a suit for damages for personal injuries which judgment was on a verdict finding no cause of action.

Mrs. Pollari sued Salt Lake City for injuries she sustained in a fall on a public sidewalk in Salt Lake City. She sought recovery on the theory that the injury was caused by her falling as a result of stepping in a hole in the sidewalk. The hole was next to an irregularity in elevation between two sidewalks. She claimed the irregularity and hole made a hazardous condition of which the city had notice, actual or constructive, but had failed to repair. The city denied that the injury was caused in the manner alleged by the plaintiff, denied any negligence in failing to discover or repair the condition and alleged as an affirmative defense that the injury was caused by Mrs. Pollari, due to her own negligence, slipping on ice which was on the sidewalk.

At the trial the jury returned a verdict of no cause of action. Mrs. Pollari appeals.

Her first contention is that the trial court committed prejudicial error in submitting to the jury the question of contributory negligence because that defense was neither pleaded by the defendant nor did the evidence raise that issue.

The plaintiff's theory of the cause of the fall was that she stepped into a hole in the sidewalk. The defendant's theory is that the fall resulted from the plaintiff slipping on the icy sidewalk.

It is clear that as to defendant's theory ofthe cause of the fall, contributory negligence of the plaintiff is pleaded. As to plaintiff's theory of the cause of the fall, defendant did not plead plaintiff's contributory negligence. The allegation of plaintiff's contributory negligence made by the defendant is expressly limited to the defendant's theory of the case.

In this State contributory negligence is an affirmative defense which must be alleged by the defendant in order that the issue may be tendered by the pleadings. Smith v. Ogden & N. W. R. Co., 33 Utah 129, 93 P. 185; Jensen v. Logan City, 89 Utah 347, 57 P. 2d 708; 1 Bancroft Code Pleading 451; 1 Shearman and Redfield on Negligence, §§ 123 and 128.

The defendant did not plead contributory negligence as to plaintiff's theory of the cause of the accident. Therefore, the pleadings do not tender that issue on plaintiff's theory of the case.

However, it does not necessarily follow that it was error for the trial court to instruct on contributory negligence when instructing on plaintiff's theory of the cause of the fall. Contributory negligence even thought not tendered by the pleadings may nevertheless be brought into the case if it appears in the plaintiff's evidence. Jensen v. Logan City, supra; Smith v. Ogden & N.W. R. Co., supra; Holland v. Oregon Short Line R. Co., 26 Utah 209, 72 P. 940; Clark v. Oregon Short Line R. Co., 20 Utah 401, 59 P. 92; Bunnell v. Rio Grande W. R. Co., 13 Utah 314, 44 P. 927; Riley v. Good, 142 Or. 155, 18 P. 2d 222; Pim v. St. Louis Transit Co., 108 Mo.App. 713, 84 S.W. 155; Kofoid v. Beckner, 70 Cal.App. 624, 234 P. 113.

In the early case of Smith v. Ogden & N.W. R. Co., supra, this court said the plea of contributory negligence by the defendant is necessary to entitle the defendant to introduce evidence of contributory negligence but intimated that absent a plea of contributory negligence, if evidence of contributory negligence were submitted by the defendant without objection as being outside the issues tendered by the pleadings, such evidence could bring contributory negligence into the case. The court said:

"So, too, whenever there is sufficient evidence in a case, whether supplied by the plaintiff or by the defendant, upon which a charge of contributory negligence may properly be predicated, the court, at the request of either party, should charge upon the subject, although again there is no plea of contributory negligence." 93 P. 188. (Italics added.)

In this case we need not decide whether evidence introduced by defendant without objection may be considered as a basis for the instruction of contributory negligence because, as will be noted hereafter, we think contributory negligence could be found from plaintiff's evidence alone.

The test of the sufficiency of evidence to support an instruction is: Evidence sufficient to support a finding upon a particular issue is sufficient to support an instruction upon such issue. See Randall's Instructions to Juries, § 140.

The pertinent physical evidence is: The accident occurred on the main sidewalk in front of a house designated as No. 30 "D" Street, Salt Lake City, hereinafter called the Baker house, at approximately 7:30 p. m. (War Time) February 4, 1944. That sidewalk is four feet wide; it runs north and south and at the place in question slopes gradually up to the north. A four-foot sidewalk running at right angles to the main walk connects the Baker house with the main sidewalk. A three-foot sidewalk also running at right angles to the main walk connects the main walk with the curb. The north edge of the sidewalk to the curb is practically in line with the south edge of the sidewalk from the Baker home. On the day of the accident mounds of snow were along the sides of all these sidewalks. Water had melted from the snow and had run down the main sidewalk and at the time of the accident had frozen into ice.

The ice extended from the east edge of the main sidewalk, north of the juncture of the Baker and main sidewalks, diagonally across the main sidewalk to the west side thereof south of the juncture of the main sidewalk and the one to the curb. The ice on the main sidewalk varied in width from about one foot to about two and a half feet.

There was a depression in the main sidewalk at about the center of where the curb sidewalk joined the main walk. This depression was about 5[inches] long, 3[inches] wide and 1 or 1 1/2 inches deep (testimony as to the depth is in conflict). At the time of the accident the edge of the curb sidewalk where it joined the main walk was one or two or two and a half inches (testimony in conflict) higher than the main sidewalk, thus forming a "step" up from the main walk.

In substance the pertinent testimony of the witnesses is as follows: Mrs. Pollari gave her age as 64 and stated that she had frequently visited the Baker home during the two years before the accident. On the 4th day of February, 1944, at approximately 4:30 in the afternoon she visited Mrs. Baker at 30 "D" Street. When she left it was approximately 7:30 in the evening and was starting to get dark. As she approached the main sidewalk walking along the Baker sidewalk she observed ice on that walk. In attempting to avoid stepping on this ice, she turned to the left and while her attention was still centered on the ice she attempted to step over it. The heel of her shoe alighted in the hole or depression which was located on the west edge of the main sidewalk and another part of her shoe alighted on the raised edge of the sidewalk which connected the curb and main walk. As a result of stepping into the hole and onto the "step" she fell. The fall caused severe pain in her right hip (later revealed to be caused by a fracture of the right femur). She immediately cried out for help at the same time trying to crawl on the sidewalk to the north. Mr. Baker, husband of Mrs. Baker, whom she had been visiting, came from his home at 30 "D" Street to her assistance. She testified that she crawled "four or five steps" up the hill on the main sidewalk before Mr. Baker got to her. She said that she did not see the defective condition of the sidewalk before she fell but that between the time of the fall and when Mr. Baker came to her assistance she saw the hole and the difference in elevation and saw that there was no ice in or around the hole but that there was snow in and around the hole. On cross-examination she admitted that the snow had been cleared off all the sidewalks except in the hole and on the "south side" (wherever that is).

Plaintiff's son testified that fifteen or twenty minutes after the accident he examined the scene of the accident. He said the hole was about five inches long, about three inches wide and about an inch and a half deep. He testified that there was a little snow in the hole but no footprints. He observed that the edge of the sidewalk to the curb at its juncture with the main sidewalk was two or two and a half inches higher than the main sidewalk. He also testified that there was water in the hole. He said there was some snow along the "step" formed by the two sidewalks.

Mr Baker, husband of the plaintiff's friend, was called as a witness by the defendant. He testified that the sidewalks involved were clear of snow and that it had not snowed for perhaps three or four days. He said that soon after Mrs. Pollari left the house on the day of the accident his wife heard her cry for help and ran to the door; he did likewise and saw Mrs. Pollari on her knees on the main sidewalk. He rushed to her assistance. He said that as he reached Mrs. Pollari he asked her if she slipped on the ice and she said "On the ice." He testified that he could not...