Smith v. City of Yankton

• Decision Date: 21 May 1909
• Citation: 23 S.D. 352,121 N.W. 848
• Parties: LOUISE SMITH, Plaintiff and respondent, v. CITY OF YANKTON, Defendant and appellant.
• Court: South Dakota Supreme Court

23 S.D. 352, 121 N.W. 848 (1909)

LOUISE SMITH, Plaintiff and respondent v CITY OF YANKTON,

Defendant and appellant

South Dakota Supreme Court

Appeal from Circuit. Court, Yankton County, SD

Hon. E. G. Smith, Judge

Affirmed

C. J. B. Harris, C. H. Dillon

Attorneys for appellant.

Gamble, Tripp & Holman

Attorneys for respondent.

Opinion filed May 21, 1909

WHITING, J.

This action was instituted by the plaintiff to recover damages for injuries alleged to have been sustained by her in slipping and falling on one of defendant’s crosswalks. Verdict and judgment being in favor of the plaintiff, the defendant has appealed. It is disclosed by the evidence: That the city, some six or more years prior to the accident, caused to be constructed a wooden approach from the cement sidewalk on Douglas avenue to the stone crossing across Fifth street; that the wooden approach is 7 feet 5 inches in length and descends from the end of the stone crosswalk southward to the cement sidewalk and is 5 feet 11 inches in width on the north end and 7 feet and 9 inches in width at the south end; that the north end of the incline is 10 3/4 inches higher than the south end; that the stone crosswalk is about 4 feet wide, and the cement sidewalk is 6 feet wide; that the north end of the approach extends about 2 feet west of the west edge of the stone crossing, and the south end of the approach extends nearly 3Y2 feet east of the east edge of the cement sidewalk; that there were no cleats or boards nailed across the approach; that this approach had remained in this condition since its construction; that some three days prior to the accident, it rained, snowed and sleeted, and by freezing all the sidewalks in the city became covered with smooth, slippery ice. The plaintiff on Christmas Day, 1902, in going to church, passed over a route not the usual route between her home and the church, and in so doing passed over three different streets, but in returning from church, at about the noon hour, she passed south on the west side of Douglas avenue, the same being the usual route between the church and her home, and she came to the approach above described. Her attention was called by a companion to the fact that said approach was dangerous and slippery, and she saw and knew its condition before attempting to pass such decline. Thinking she could pass down the same safely by being careful, and attempting so to do, she slipped and fell, sustaining an injury, for which this action is brought.

It is the contention of the plaintiff that the defendant was negligent in constructing said incline on the slant on which it was constructed, and that it was also negligent in that it omitted to cause any cleats or cross-boards to be put upon such approach. It is also contended that the defendant was negligent in not causing the walks to be cleaned and in permitting the same to become and remain slippery from sleet, snow, and rain. This last claim of negligence was eliminated upon the trial by the charge of the court to the jury, wherein it instructed them as follows:

“With reference to sudden storms and to the formation of thin and slippery ice upon public streets and sidewalks, the rule of law is that a municipal corporation is not liable for accidents resulting from that sort of conditions, because it would be simply impossible for any city to prevent the existence of conditions of that kind. … Whether or not the city was liable for allowing ice or snow to remain upon this sidewalk is not before you. It is not in this case, for the simple reason that, before a city can be held liable for negligence in failing to remove snow and ice from its sidewalk, some notice of the unsafe condition of the walk, resulting from the snow and ice upon it, must be shown to have been given to the city. … There is no evidence here to show that that condition, so far as the snow and ice were concerned, had existed for a sufficient length of time to show that the city had implied knowledge of it, and possibly the evidence is not sufficient to warrant a finding that the city would be guilty of negligence, so far as that alone is concerned, even if they had notice of it.”

It is contended by the appellant: First. That the city was not guilty of any negligence in the construction of the walk or in maintaining it in the condition in which it existed, as it does not affrrmatively appear that there was any defect in the walk or in the ends thereof, or that the approach was not properly constructed or was out of repair, or that there was any lateral pitch to the incline. Second. That, it appearing from the instructions of the court that the city was not liable for any injury sustained by the plaintiff by the mere slippery condition of the sidewalk occasioned by the freezing of the sleet, rain, and snow, a verdict could only be found against the city upon the plaintiff’s showing that the accident was causesd solely by the defective walk. That there was no evidence warranting the jury in finding that the injury was caused by any defect in the walk, but that the evidence clearly shows that the injury resulting to the plaintiff was caused entirely by the slippery condition of the walk by reason of the snow and ice thereon, and that therefore the court should have granted defendant’s motion for a direction of a verdict in its favor at the close of plaintiff’s evidence. Third. That the court erred in certain parts of its charge to the jury in which it charged them that the sidewalks of a city must be constructed and maintained with reference to the climatic conditions that may occur, and also in various other parts of its charge specified by the counsel for the appellant. It is further contended that the court erred in refusing to give to the jury certain instructions requested on the part of the appellant. Fourth. That, if there was any defect in the said approach, it was in the original construction of such approach, and the error was in the judgment of the members of the city council in adopting the plans for walks and grades, and that therefore the corporation cannot be holden. Fifth. That the accident resulted in part from the contributory negligence of the plaintiff.

It is insisted on the part of the respondent that the motion to direct a verdict in favor of the defendant was properly denied for the reason that the question of negligence on the part of the city, either in the construction or maintenance of the walk, was purely a question for the jury, and that it was for the jury to say whether or not there was negligence on the part of the city in constructing a walk such as the one in controversy, and especially in omitting to nail cleats thereon. It is further insisted on the part of the respondent that, while the city was not liable for the accident or injury caused solely by the slippery condition of the walk, yet that it was competent for the pliantiff to give evidence upon the subject of its slippery condition, and for the jury to consider that condition in connection with any defects that it might find in the construction or maintenance of the walk itself, independent of the ice or snow thereon.

As regards the fourth contention of appellant, as above noted, it only necessary to note that there is nothing in the evidence tending to show that any general plan for the grading of the street and constructing of the walks had ever been adopted by said corporatron, and that the approach in question was a part of such a plan, so that we do not feel it necessary Ito pass upon the question as to whether or not a municipality could be holden for damages flowing from an accident caused by a defect in plans adopted by the proper officers of such corporation.

A careful consideration of the first and second contentions of the appellant show that the determination of the same would be controlled entirely by the determination of the third matter complained of, to wit, the determination of whether the court erred in the instructions complained of, and of whether it erred in refusrng to give the instructions asked for. If the court was correct in the instructions it gave and in its refusing to instruct as requested, then the appellant is wrong in his first and second contention. It therefore becomes necessary for us to consider only the instructions given and those refused.

The instructions complained of, which are to be found separated one paragraph from another and mingled with the other charges given by the court, are as follows:

“It is the duty of the city to so construct its sidewalks as that they may be reasonably safe for the use of pedestrians passing over them, under all ordinary climatic conditions which exist in this country, in this latitude.”

“But that, under the usual and ordinary conditions which prevail throughout the year, those sidewalks shall be reasonably safe for the use of pedestrians.”

“A sidewalk must be so constructed as to be reasonably safe under those ordinary and usual prevailing conditions of weather.”

“Was constructed so that it would be reasonably safe for persons traveling over it under the usual and ordinary climatic conditions existing here.”

“If you find that the walk was properly constructed, so as to be reasonably safe for travel, then, as you will observe, the walk would assume the same character, so far as this case is concerned, as the other walks of the city which may have been properly constructed, and then the rule with reference to thin ice would prevent a recovery where nothing but thin slippery ice is shown to have existed.”

“If there was a faulty construction in this sidewalk at this point, and if the sidewalk was so constructed as that under ordinary and usual climatic conditions it was unsafe for persons traveling over it, then the city was negligent in so constructing it.”

The instructions which are requested and refused are as follows:

“You are instructed that the evidence in this case...