Weider v. Goldsmith

• Decision Date: 15 July 1958
• Docket Number: No. 32,A,32
• Citation: 91 N.W.2d 283,353 Mich. 339
• Parties: Joseph WEIDER, Plaintiff, Appellant and Cross-Appellee, v. David GOLDSMITH and Sylvia Goldsmith, his wife, jointly and severally, Defendants, Appellees and Cross-Appellants. pril Term.
• Court: Michigan Supreme Court

Page 283

91 N.W.2d 283

353 Mich. 339

Joseph WEIDER, Plaintiff, Appellant and Cross-Appellee, v. David GOLDSMITH and Sylvia Goldsmith, his wife, jointly and severally, Defendants, Appellees and Cross-Appellants.

No. 32, April Term.

Supreme Court of Michigan.

July 15, 1958.

Philip Weiss and Jesse R. Bacalis, Detroit, for plaintiff and appellant.

Moll, Desenberg, Purdy & Glover, Detroit, for defendants and appellees.

Before the Entire Bench.

SMITH, Justice.

The plaintiff before us was injured in a fall suffered on the public sidewalk in front of the defendants' property. It happened in February and the walk was not free of snow and ice.

Plaintiff Joseph Weider was a tenant in the defendants' apartment building at 2548 Second avenue in Detroit. It was his habit to leave his apartment about 6:00 a. m. every week-day morning to catch a bus to work.

On Monday, February 14, 1955, two inches of snow had fallen in Detroit. We will assume that defendants' caretaker, Mrs. Crum, as was her custom, shoveled away the accumulation on the public walk in front of the apartment house and on the private sidewalk leading up to the building. ¹

There was no snow the next day, Tuesday. However, by the time Mr. Weider went to work on Wednesday morning, February 16, 1955, another light snowfall was descending. After plaintiff reached the main sidewalk he slipped on a patch of snow and ice that had formed at the base of a 3 or 4 inch 'heave' in the paving. (This hump in the walk had been there, to plaintiff's knowledge, ever since he ahd lived in the apartment house.) The resultant fall broke Mr. Weider's hip, permanently disabling him. The jury awarded $92,000 damages. The trial court granted defendants' motion for judgment non obstante veredicto and plaintiff is before us on a general appeal. Defendants have cross-appealed, in part, with respect to the instructions to the jury.

The primary issue on appeal may well be put in the terms employed in appellant's brief:

'Appellant in this action relies on the theory that the appellees, in their act of shoveling the sidewalk at the heave added an unnatural hazard, one which was over and above and beyond the natural hazard of the free fall of the snow and the ice. Appellant believes that once the landowner starts to remove the snow from the sidewalk regardless of whether or not he is under a duty to do so, he is bound to do so in a careful manner so as not to add any additional hazard over and beyond the natural hazard of the free fall of the snow and the ice.'

The theory relied upon, then, is one of increase of hazard. The since qua non of this doctrine is that a new element of danger, not theretofore present, be introduced by the acts of the defendants. Clear expression of this requirement is found in numerous cases. Thus, in Taggart v. Bouldin, 111 N.J.L. 464, 468, 168 A. 570, 571, the snow which had been banked on either side of the sidewalk by defendant's shoveling, later melted and froze on the walk. In upholding the lower court's nonsuit of plaintiff the court said:

'The action of the defendant in having the sidewalk shoveled off, introduced no new element of danger; rather the opposite resulted, and the danger was lessened. * * * Since this be so, to hold a property owner answerable in damages, for injuries received because an effort is made to keep the sidewalk clear and to reduce the danger to pedestrians, would result in a hardship and injustice.'

In an almost identical situation in Illinois, reported in Riccitelli v. Sternfeld, 349 Ill.App. 63, 66, 109 N.E.2d 921, 922, the court reversed a jury verdict for plaintiff, saying in part:

'Heavy snowfalls create emergency conditions and a generally hazardous situation throughout this city. There have been occasions in which the entire citizenry has been mobilized to make paths along sidewalks and to clear streets for traffic. * * * In one sense, a dangerous situation is created but much less dangerous than would be created if no one undertook to do anything. Plaintiff argues that if defendant had not undertaken to clear a path and if his employees had not piled up the snow, conditions would have been better than they were at the time of the accident. This is conjectural. The general assumption is that the industry displayed by citizens removing snow after a snowfall is desirable, if not necessary. The water which froze and produced the lump of ice on which plaintiff fell, came from natural causes. It cannot be said to have arisen from anything defendant did, other than removing the snow obstructing his driveway and making a path on the sidewalk for pedestrians. That in so doing he may have piled some snow from the driveway onto the piles banked along the walk is not the type of act upon which liability in a case of this character may be predicated.'

See, also, Mahoney v. Perreault, 1931, 275 Mass. 251, 175 N.E. 467.

In Herrick v. Grand Union Co., 1956, 1 A.D.2d 911, 149 N.Y.S.2d 682, 683, the

defendant, in cleaning the walk after passing pedestrians had packed down much of the snow, was able only to remove the loose snow on top. The court, per curiam (in upholding an involuntary nonsuit), said in part:

'The rule is that a failure to get all the snow and ice off the walk is not negligence. * * * The claim of increased hazard in the case before us is not supported by substantial evidence on the record viewed as a...