Speakman v. Dodge City

• Decision Date: 10 June 1933
• Docket Number: 31148.
• Citation: 22 P.2d 485,137 Kan. 823
• Parties: SPEAKMAN v. DODGE CITY. [*]
• Court: Kansas Supreme Court

22 P.2d 485

137 Kan. 823

SPEAKMAN v. DODGE CITY. ^[*]

No. 31148.

Supreme Court of Kansas

June 10, 1933

Syllabus by the Court.

While city is not liable for injuries resulting solely from fall on smooth ice and snow, it is liable where ice and snow accumulate and become rutted and uneven, if city has sufficient notice and opportunity to remedy situation (Rev St. 1923, 12--105, 14--441).

Pedestrian falling on snow and ice must establish right to recover from city (Rev. St. 1923, 12--105, 14--441).

Evidence held not to establish liability of city to pedestrian falling on snow and ice while crossing alley (Rev. St. 1923, 12--105 14--441).

1. A city is not liable for injuries resulting solely from falls on smooth ice and snow, but is liable where ice and snow have been allowed to accumulate and remain and become ridged rutted, and uneven, due regard being given to whether the city has sufficient notice and opportunity to remedy the situation by removal or other effective remedy, and in connection therewith consideration should also be given to weather conditions and to the well-recognized sudden changes in meteorological conditions which frequently occur in this state.

2. Where plaintiff seeks to recover from the city for injuries alleged to have been sustained by a fall on snow and ice, the burden of proof is upon him to show all of the various elements entering into his right to recover.

Appeal from District Court, Ford County; Karl Miller, Judge.

Action by Mattie Speakman against the City of Dodge City. Judgment for plaintiff, and defendant appeals.

Judgment reversed, and cause remanded, with instructions.

Arthur C. Scates, City Atty., of Dodge City, (Albert Watkins, of Dodge City, of counsel), for appellant.

Lane Dutton, of Dodge City, and J. N. Tincher, of Hutchinson, for appellee.

THIELE Justice.

This was an action for damages for personal injuries sustained in falling on an icy sidewalk.

On December 14, 1930, there was a snowfall of 4.6 inches at Dodge City. On December 17, 1930, plaintiff was passing along Cedar street, and in crossing the alley between First and Second avenues she fell and sustained injuries alleged to have been caused by reason of snow and ice having been permitted to remain and become roughened, ridged, and uneven.

It was stipulated at the trial that Dodge City is a city of the second class, and that notices, as required by R. S. 12--105 and R. S. 14--441, were given.

A. A Justice, United States weather observer at Dodge City, whose testimony is undisputed, testified that on Sunday, December 14, there was a 4.6-inch snowfall; that early that morning the temperature was 34 and dropped continuously during the day, the lowest being 27; that on the 15th there was a .2-inch snowfall and the highest temperature was 27 and the lowest 22; that on the 16th there was a trace of snow and the highest temperature was 26 and the lowest 22, and that on the 17th there was .1-inch snowfall and the temperature was below freezing all day, and that from midnight Sunday morning to midnight of the 17th there was a total sunshine of 2.1 hours, and that sunshine would have a tendency to melt snow, even though the temperature remained below freezing.

The plaintiff testified that the sidewalk on Cedar street had been cleared of snow, but the alley (where she fell) was all snow, "they had drove through it and walked through it, and all full of holes, it was in a very bad condition there to cross. It was rough--it was uneven--there were great big ridges--no place provided to walk across the alley. The snow was in ridges five or six inches high." On cross-examination she stated that the ridges were just ruts that cars had made, and there were footprints and car tracks, there was no path, it was not snow, it was just frozen, did not sink down in it, walked on top of it, the whole alley was cut up. The only other witnesses for plaintiff were the superintendent of streets who testified the alley was slick and frozen, but he did not notice any ruts, just prints of a car, not more than two inches, and a woman who passed just before the accident and who stated cars had passed through and people had walked across when it was soft and it had frozen. The jury returned answers to special questions as follows:

"1. Q. State whether or not the ice and snow was rough and uneven at the alley crossing on Cedar street, between First avenue and Second avenue. A. Yes.

"2. Q. Was it snow or ice? A. Both.

"3. Q. How high were the ridges of ice? A. From two to four inches.

"4. Q. Were there any sharp ridges? A. Yes.

"5. Q. What obstruction in the alley did the plaintiff fall over? A. Ridges of snow and ice.

"6. Q. Describe the obstruction. A. Ridges of snow and ice, caused by automobile and pedestrian traffic.

"7. Q. Was it such as to be plainly visible at two o'clock in the afternoon? A. Yes.

"8. Q. Could it have been avoided by stepping over it or going around it? A. Not conveniently.

"9. Q. Was it caused by automobiles going along the alley? A. Yes, in part.

"10. Q. Was it caused by pedestrians crossing the alley at that point? A. Yes, in part.

"11. Q. Did the same condition as to ice and snow prevail over Dodge City generally on December 17th, 1930? A. No.

"12. Q. What, if anything, was unusual about the alley crossing involved in this case? A. The presence of ridges of snow and ice on the day of accident."

The defendant moved to set aside the answers to questions 3, 4, 11, and 12 as contrary to law and the evidence, also for judgment notwithstanding the verdict, which motions were denied, as was a motion for a new trial.

The defendant appeals and assigns error on the court's refusing to give requested instructions, on the giving of certain instructions, and on the denial of its motions.

In so far as the motion to set aside answers to the special questions is concerned, there was evidence, which the jury evidently believed, to warrant the answers to questions Nos. 3, 4, and 12, but we are unable to find anything in the abstract which warrants the answer to question No. 11. It is true there is evidence that some sidewalks had been cleaned, and that snow had been removed from the alley where the accident occurred, but there is no evidence as to snow and ice conditions at any other crosswalk or crossing.

In Evans v. City of Concordia, 74 Kan. 70, 85 P. 813, 7 L.R.A. (N. S.) 933, it was held that, where plaintiff knew when he went on a sidewalk covered with ice and snow, that the ice was smooth and slippery, and he fell by reason thereof, and no other defect was claimed, he could not recover for his injuries. The distinction made in many cases where snow and ice has been allowed to form in ridges or uneven places is noted, as well as the effort to have the court adopt the rule that in a mild climate the city is held to a greater degree of diligence in removing ice and snow than would obtain in a more rigorous climate. The concluding paragraph of the opinion reads: "The court refers to the well-established doctrine that a city is not liable for injuries caused by smooth and slippery ice, where it has formed generally upon the streets and walks, and where no special defect is shown, and mentions two well-founded reasons for it: First, it is not one of the law's reasonable requirements that a city should remove from the many miles of walks the natural accumulation of ice and snow because such a requirement is impracticable from the nature of things; second, because when these conditions exist generally they are obvious, and every one who uses the sidewalks at such times is on his guard, warned by the surroundings and the danger of slipping at every step. These reasons meet with our approval. To hold otherwise would cast upon cities a burden for which they are not responsible and greater than their ability to provide for. This rule has reference to a general accumulation of ice or snow from natural causes, where no other defect in the walk is shown, except the natural slippery condition of the ice or snow." Pages 73, 74 of 74 Kan., 85 P. 813, 815.

No other Kansas case has been cited in the briefs, nor does our own research disclose any, where the question of liability of a municipality for injuries caused by falling on snow and ice, except where coupled with defects in the street or sidewalk, has been before the court, except Gorges v. State Highway Comm., which has been here twice. 135 Kan. 371, 10 P.2d 834, and 137 Kan. 340, 20 P.2d 486. In the first appeal, the petition alleged the highway was defective in that ice was permitted to accumulate on it for a distance of about 100 feet near a culvert or bridge where there were concrete posts, and that plaintiff's automobile skidded against the posts causing the injury. A demurrer was overruled in the trial court, and on appeal it was held the petition did not state a cause of action. The petition was then amended to show in substance that there was a low place in the highway; that discolored ice had accumulated thereon in which deep icy ruts were cut by travel over it resulting in the highway being rough and uneven. A demurrer to the amended petition was overruled, and the second appeal came as a result. The liability of the state highway commission and a city are not measured by the same rule, but the following language from the second opinion is instructive:

"Here the cause of the injury was not in any fault of the structure itself, but was caused by the action of the elements over which the commission had no control. The danger was caused by a fall of rain and snow which fell on city streets and county highways alike, and by a process of freezing and thawing was

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