Quinn v. McPherson, No. 39040

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

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.

Page 195

[437 P.2d 394] 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

Page 196

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 [437 P.2d 395] 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

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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...