W. T. Grant Co. v. Casady, 15775.

• Decision Date: 05 January 1948
• Docket Number: 15775.
• Citation: 188 P.2d 881,117 Colo. 405
• Parties: W. T. GRANT CO. v. CASADY.
• Court: Colorado Supreme Court

188 P.2d 881

117 Colo. 405

W. T. GRANT CO. v. CASADY.

No. 15775.

Supreme Court of Colorado, in Department.

January 5, 1948

Error to District Court, City and County of Denver; George A Luxford, Judge.

Action by Luona Casady against the W. T. Grant Company, and the City and County of Denver, a municipal corporation, to recover for injuries sustained by the plaintiff in a fall on sidewalk. To review a judgment for the plaintiff against the W. T. Grant Company, the W. T. Grant Company brings error.

Judgment reversed.

John P. Beck, of Denver, for plaintiff in error.

L Bernard Davis, Howard Roepnack and Howard S. Pine, all of Denver, for defendant in error.

ALTER Justice.

Luona Casady, plaintiff below, recovered a judgment against W. T Grant Company, a corporation, defendant, to review which this writ of error.

The action was originally instituted against the Grant Company, and the City and County of Denver, a municipal corporation. Upon trial to a jury the city was exonerated and is not a party here.

It is alleged in the complaint that plaintiff, without negligence or carelessness on her part, sustained injuries resulting from a fall on the sidewalk at the intersection of Sixteenth and Stout streets in the city of Denver, which sidewalk was adjacent to the property occupied by the defendant. It is further alleged:

'IV. That the City and County of Denver has the management and control of its public highways and streets and the crosswalks thereat, and particularly the crosswalk described herein; that it was the duty of the City and County of Denver to keep 16th and Stout Streets and the crosswalks at said intersection in a reasonably safe condition for travel by the public at all times.

'V. That by ordinance of the City and County of Denver it is required, at all times herein mentioned, that the occupants of buildings keep the sidewalks adjacent thereto free and clear of ice and snow at all times.

'VI. That notwithstanding the duty imposed upon the defendants, all as alleged aforesaid, there was at the time of the injury heretofore set forth a dangerous and unsafe condition for pedestrians using said crosswalk and sidewalk by reason of a coating of ice on said crosswalk and sidewalk negligently left and permitted to exist by the defendants, and each of them.

'VII. That the defendants, and each of them, had notice of, or should have known of said defect and unsafe condition of said crosswalk and sidewalk for several hours prior to the time of the injury hereinabove set forth but neglected and failed to put said crosswalk and sidewalk in a safe condition for public travel.'

In conclusion plaintiff alleges permanent injuries, and prays damages in the sum of $27,500.

In the answer of W. T. Grant Company it sets up the following defenses: First, it alleges that the complaint fails to state a claim upon which relief can be granted; second, it is alleged that the ordinances of the City and County of Denver, upon which plaintiff relies, imposes no duty upon defendant to keep the sidewalk and crosswalk free and clear or snow and ice at any time, or at all, and it denies generally all other material allegations in the complaint; third, it alleges that the injuries were directly, proximately and solely caused by plaintiff's negligence and lack of care; fourth, contributory negligence on the part of plaintiff is alleged; fifth, it alleges that the injuries and damages occasioned by plaintiff's fall directly and proximately resulted from an unavoidable accident.

The jury returned a verdict against W. T. Grant Company for $1,500, and judgment was entered thereon. Defendant's motion for new trial was overruled.

Plaintiff testified that on the evening of March 27, 1944, at about 8:30 o'clock, she was walking in a northerly direction and crossed the intersection of Sixteenth and Stout streets; that as she stepped on the sidewalk at the northwesterly corner of the intersection, ice on the sidewalk caused her to slip and fall, resulting in permanent injuries. She further testified that she was a practical nurse and, as such, earned $5 per day while engaged in the practice of her calling, and that she had resided in Denver apprximately six months. She also stated that she was familiar with the street conditions at the intersections during snowstorms and inclement weather and had observed that defendant was accustomed to remove snow from the sidewalk adjacent to its building. She further testified that at the time of the accident no snow was falling and that she was walking carefully. There is no question raised as to the seriousness of plaintiff's injuries.

At the conclusion of plaintiff's evidence, section 1751 of the Denver Municipal Code, 1927, was offered and received in evidence. It reads as follows: 'It shall be the duty of all policemen to report to the Department of Improvements and Parks all defects in sidewalks, and in case of accident, they shall report and same to the law department, together with the names of any witnesses to such accident, if known to them.'

This was the only section of the ordinances offered by plaintiff. Its application to the question here presented is not apparent, but presumably it was offered to establish liability of the city and defendant.

Plaintiff called one of defendant company's employees as a witness, who testified that it was the custom and practice of defendant to remove snow from the the sidewalk adjacent to its building, and he further testified that at sometime about 8 o'clock in the evening of March 27, 1944, but prior to plaintiff's accident, he personally had swept the sidewalk and removed all snow therefrom. He also stated that if ice formed on the sidewalk it was the practice to sprinkle salt and sand on the icy surface to prevent pedestrians slipping, and that that practice had been followed earlier on the night in question.

After plaintiff had rested her case, defendant interposed a motion for a nonsuit upon several grounds which we summarize by stating that the defendant, as an occupant of property abutting on a public sidewalk, owed no legal duty, and incurred no legal liability, to plaintiff for injuries sustained thereon due either to ice or snow, and that no ordinance of the city could be enacted to relieve it of its primary duty under the law, nor could the city by ordinance impose upon an occupant of a building adjacent to the sidewalk any legal liability to those who might be injured thereon. The motion for nonsuit was denied.

Defendant introduced in evidence a report of Weather Bureau which established that hourly on the night in question, from 5 until 10 o'clock, two hundredths of an inch of moisture fell; also there was offered and received in evidence without objection section 1746 of the Denver Municipal Code, 1927, which reads: 'The owners or agents or occupants of houses, warehouses stores or tenements and grounds belonging thereto or occupied by them shall keep the sidewalks and gutters in front of and adjoining such property clean, and after any fall of snow shall cause the same to be immediately removed from the sidewalk and gutters fronting their respective lots or parts of lots into the carriage way of the street. Any person or persons failing to comply with any requirement of this section shall, upon conviction thereof, be fined not less than five dollars nor more than fifty dollars.' (Italics ours.)

Four specifications of points are presented, i. e.: 1. Reversible error in denying defendant's motion to dismiss; 2. error in denying defendant's motion for a directed verdict at the close of all of the evidence; 3. error in permitting a departure in proof by plaintiff from the allegations of the complaint; 4. error in instructions.

Subsequent to the return of verdict and entry of judgment in her favor, plaintiff, being dissatisfied with the amount of the judgment, filed a motion for a new trial on the question of damages only, which was denied, and she has filed a cross-specification of points, contending that the denial of this motion was reversible error.

1. The decisions in this jurisdiction definitely establish that under the state statutes and city ordinances it is the original duty of the municipality to keep its streets and sidewalks in reasonably safe condition for travel, and for any injury occasioned by a neglect of this duty it will be primarily liable. City of Denver v. Aaron, 6 Colo.App. 232, 40 P. 587; City of Denver v. Moewes, 15 Colo.App. 28, 60 P. 986; City of Denver v. Baldasari, 15 Colo.App. 157, 61 P. 190; Higgins v. City of Boulder, 105 Colo. 395, 98 P.2d 996.

Section 15, article III, of the Denver Charter, 1927, provides 'Except as otherwise provided in this charter, the board of public works [Department of Improvements and Parks] shall have exclusive management and control of the construction, reconstruction and maintenance of all public and local improvements, the care, repair and maintenance of all streets, alleys and other highways and public places; of all sewers sidewalks, bridges, viaducts, tunnels, and other like structures, of all building belonging to, and the construction of all buildings for the city and county, except buildings used exclusively for fire or police purposes or for hospitals * * *.' Under the provisions of this section,...