Smyth v. City of Bangor

• Decision Date: 24 May 1881
• Citation: 72 Me. 249
• Parties: WILLIAM SMYTH AND WIFE v. CITY OF BANGOR.
• Court: Maine Supreme Court

72 Me. 249

WILLIAM SMYTH AND WIFE v. CITY OF BANGOR.

Supreme Judicial Court of Maine.

May 24, 1881

ON EXCEPTIONS AND MOTION TO SET ASIDE THE VERDICT.

An action to recover for personal injuries received by Mrs Smyth, by a fall, in the evening of December 9, 1878, alleged to have been caused by a defective way which the city was by law obliged to keep in repair.

Writ dated February 7, 1879. Plea, general issue. Verdict, $3800.

The facts material to the questions considered by the court are stated in the opinion.

J Varney, for the plaintiffs. Upon the questions discussed in the opinion: The plaintiffs never contended that anything less than actual notice of the defect was sufficient. Their position is that the walk had been visibly, notoriously, and scandalously bad; that it was located where the street commissioner passed several times every day, and must have seen it, and his statements in the conversation with Mr Smyth, as testified to by Mr. Smyth, had a direct tendency to show actual notice. It was admitted for that purpose and was admissible for that purpose.

It was a defect caused by the negligence of the city. The culvert designed to carry the water across under the surface of the walk had been stopped up, and no effort was made by the city to prevent its flowing over and upon the walk where it froze and became dangerous. Stanton v. Springfield, 12 Allen 569; 104 Mass. 83.

J. F. Rawson, also for plaintiffs.

T. W. Vose, city solicitor, for the defendants, cited: Tripp v. Lyman, 37 Me. 252; Stone v. Hubbardston, 100 Mass. 56; stat. 1877, c. 206; Porter v. Sevey, 43 Me. 529; Curtis v. Mundy, 3 Met. 405; Perkins v. Fayette, 68 Me. 152.

WALTON J.

This is an action to recover damages for an injury claimed to have been received through a defect in one of the sidewalks in the city of Bangor. The plaintiff (Mrs. Smyth) says that on the evening of the ninth of December, 1878, as she was walking upon the sidewalk in Court street, she slipped and fell, and was thereby injured. For this injury she has recovered a verdict against the city of thirty-eight hundred dollars. The question is whether, upon the evidence reported, the verdict can be sustained. We think it cannot. The evidence fails to disclose any other defect than slipperiness. Water which had oozed out of the adjoining bank, and the flow of which may have been increased by the drainage from a privy and a sink-spout, had run across the sidewalk and frozen, forming a spot of ice some six or eight feet long and the width of the sidewalk; and the witnesses estimate its thickness from one to three inches. It was in no respect an obstacle to travel except that it made the sidewalk at that place slippery. And we regard it as now well settled that mere slipperiness, caused by either ice or snow, is not a defect for which a town or city is liable.

In this cold climate, where ice and snow cover the whole face of the earth for a considerable portion of the year, such an inconvenience ought not, and rightfully can not, be regarded as a defect. No amount of diligence can keep our streets and sidewalks at all times free from ice and snow; and the latter, when trodden smooth and hard, is nearly, and sometimes quite, as slippery as ice; and travelers will often slip and fall when no one is to blame. To hold towns and cities responsible for such accidents would practically make insurance companies of them. A block of ice may constitute a defect the same as a block of wood or stone. So a ridge or hummock of ice, or snow, may constitute a defect the same as a pile of lime, or sand, or mortar, upon the sidewalk would. But we regard it as now well settled that mere slipperiness of the surface of a highway or sidewalk, caused by either ice or snow, is not a defect for which towns and cities are liable. Gilbert and wife v. City of Roxbury, 100 Mass. 185, although a much stronger case for the plaintiffs, was very similar to the one now under consideration; and yet the presiding judge directed a verdict for the defendants, and the law court sustained the direction. In that case, as in this, the sidewalk was constructed of earth, and was some three or four inches lower upon one side than the curbstone upon the other, and the ice had formed a ridge in the middle of the walk from three to five inches higher than at the edge, and sloping off towards the edge; and yet, being satisfied that there was nothing which caused the female plaintiff to fall but the slipperiness of the ice, the court held that the direction to the jury to return a verdict for the defendants was correct. In this case, we are satisfied that the fall of the female plaintiff was caused by nothing but the slippery condition of the sidewalk on which she was traveling. True, the sidewalk was a little higher upon the outside than upon the inside, but not more so than sidewalks are often purposely constructed in order to turn the water, and, in fact, must be, when they are constructed wholly of earth, and there is a gutter between the sidewalk and the street. The spot of ice on which the plaintiff slipped was nearly smooth, and almost as level as the sidewalk itself. There is no pretense that it formed a ridge or hummock upon the sidewalk. ...