Quinn v. McPherson, 39040

• Decision Date: 15 February 1968
• Docket Number: No. 39040,39040
• Citation: 73 Wn.2d 194,437 P.2d 393
• Court: Washington Supreme Court
• Parties: Maria P. QUINN, Respondent, v. Stanley McPHERSON, doing business as Marketime Foods, and Lewis Becker, doing business as Becker Brothers Land Company, Appellants.

Page 194

73 Wn.2d 194

437 P.2d 393

Maria P. QUINN, Respondent, v. Stanley McPHERSON, doing business as Marketime Foods, and Lewis Becker, doing business as Becker Brothers Land Company, Appellants.

No. 39040.

Supreme Court of Washington, Department 1.

Feb. 15, 1968.

Rehearing Denied March 22, 1968.

Skeel, McKelvy, Henke Evenson & Uhlmann, Frederick V. Betts, James M. Lindsey, Jr., Seattle, for appellants.

Richard C. Shanks, Seattle, for respondent.

LANGENBACH, Judge. ^*

This is an appeal from a jury verdict allowing plaintiff damages for a fall upon snow and ice on the sidewalk in front of appellants' premises.

Plaintiff alleged that on December 31, 1964, at 8 a.m., there was snow and ice on the street. After a summary judgment had been granted against her first complaint, she amended it to allege an unnatural accumulation of snow and ice at the place where she fell near the corner of appellants' store. She alleged that a drainpipe from the marquee over the front of the store violated the city ordinance in that it drained directly onto the sidewalk instead of through a hole in the sidewalk. This permitted the fallen snow on the marquee, when it melted, to drain onto the sidewalk where it fanned out and froze, creating an unnatural accumulation of ice which was covered by the newly fallen snow. When she stepped upon this snow and ice as she passed from under the marquee she slipped and fell sustaining serious injuries.

The appellants, the owner and the lessee of the premises involved, denied that she fell upon their property and affirmatively pleaded contributory negligence on her part.

Plaintiff testified she lived about two blocks north of the store. On that morning there was ice with a light coating of snow along the street on which she approached the store on her way to work. There was a marquee about 8 feet wide and 50 feet long over the front of the store under which there was no snow and ice, and the sidewalk was dry. As she stepped out from under the marquee and off the dry sidewalk, going south, she slipped on the snow and ice and fell. She did not state the exact spot of falling but marked an 'x' on one exhibit as the approximate place. She managed to get to her feet and went to the door of the store where a man assisted her inside. Later a clerk took her home.

No one had seen her fall. The store manager testified he examined the scene after her fall and found no ice or snow on the store property. This was corroborated by the man who had his independent butcher shop in the store premises and who had helped the plaintiff into the store. He said he saw no snow or ice until in the alley south of the store.

While the plaintiff admitted that she saw the ice where she had fallen, she could not tell whether it was a natural or unnatural accumulation of ice. It was asserted that this was caused by the snow melting on the marquee and coming down the drainpipe where it fanned out across the sidewalk and froze where she had to walk and thus caused her to fall.

Plaintiff relied upon expert testimony of a meteorologist to reconstruct and establish the unnatural accumulation of ice upon the sidewalk. He testified that from official weather records of that particular morning the temperature on top of the marquee was 34 degrees and on the sidewalk below it was 32 degrees, so that the snow melted on top of the marquee and ran down the drainpipe where it froze when it struck the sidewalk.

Heat radiating from the store windows and wall beneath the marquee assisted in melting the snow. He estimated that 15 to 20 gallons of water came down the drainpipe and froze on the sidewalk.

He estimated that from the size of the marquee there would have been about 400 square feet of snow on it. The water equivalent is about 1/10th; this would amount to 4 cubic feet of water or about 30 gallons. There was testimony that the snow melting on the marquee would be going down the drainpipe at the rate of 7.8 gallons per hour.

A mechanical engineer also testified that the heat from the windows and wall underneath the marquee would assist in melting the snow.

Appellants called an expert who measured the contours of the marquee and observed the discharge of rainwater therefrom during a storm. He stated it required about 62.5 gallons of water to fill the depressions in the marquee before any water would run down the drain. It would fall into a depression or crack in the sidewalk next to the building and would not extend onto the sidewalk in any appreciable quantity. From the personal observations of this witness and his examination of plaintiff's photographs, also taken during a rain, the water would not extend more than 10 inches from the wall onto the sidewalk. It would follow a crack or divider therein south to the alley. These dividers are very apparent in these exhibits.

In front of the store there were three racks of presto logs immediately north of the drainpipe. These racks extend a little over a foot from the wall into the street. This is shown in an exhibit.

In rebuttal plaintiff conducted an experiment the Sunday before the last day of the trial. One witness mounted a ladder and poured 1 gallon of water down the drainpipe; the other witness photographed the result on the sidewalk. This was repeated by pouring 4 more galloms at one time down the drainpipe and again photographing the resulting spread on the sidewalk at the foot of the drain. Admittedly the weather conditions were entirely different in May 1965, when this experiment was performed, from December 1964, when plaintiff fell. This testimony and these photographs were admitted in evidence over the strenuous objections of appellants.

There was proof that the location and condition of the drainpipe was in violation of the city ordinance.

There were 12 assignments of error. These raised four main issues: a challenge to the sufficiency of plaintiff's proof; withdrawing the issue of plaintiff's contributory negligence from the jury; an improper statement by the court to the jury pertaining to hypothetical questions; and the admission of the testimony and exhibits of the experiment with the water poured down the drainpipe in May 1965, as contrasted with December 1964.

Appellants argued that the mere proof of violation of the city ordinance did not establish liability. The court instructed the jury that '(w)hile the violation of a city ordinance is negligence, such negligence will not render a defendant liable for damages unless such violation proximately caused the injury.'

Since there was no proof by plaintiff that she slipped upon an unnatural accumulation of ice where she fell, it was argued that proof of causation was entirely lacking.

Plaintiff testified she walked down the street covered with snow and ice for about two blocks before she reached appellants' premises. She walked the length of the marquee on dry pavement. She testified:

Q. How did you fall Mrs. Quinn? A. Well, I don't know how to explain it because it happened so quickly. I just took a step--I was on the dry pavement, and I stepped into the snow, and it was icey underneath, and I fell down. * * * Q. But you stepped on the snow on top and then you fell? A. Well, I stepped from the dry place into this (indicating), and it was icey underneath, and my foot slipped off and I fell. * * * Q. (By Mr. Betts) As I understand it, Mrs. Quinn, you did not see the ice? The ice was covered with snow? A. Yes. It wasn't very much snow on that part of--that place. Q. But you did see the ice, did you? A. Yes. Q. You did see the ice? A. Just because you can see it kind of shiny underneath.

She also stated that after she fell she crawled over to the rack of presto logs under the marquee and raised herself to her feet. She did not state how far or in what direction she crawled to reach the presto logs in their rack against the wall of the store. Her testimony also showed that there was ice and snow all the way down from her residence to the place of falling. On this basis error is assigned to the failure of the court to instruct concerning contributory negligence. Proper exceptions were taken which raised the question that her negligence was a proper fact for consideration by the jury.

Appellants requested King County stock instructions on burden of proof and negligence and contributory negligence. In essence the court gave such an instruction with the exception of contributory negligence. Timely exceptions were taken. This in essence and in effect limited the jury in...