Wilson v. City of Idaho Falls

• Decision Date: 18 December 1909
• Citation: 105 P. 1057,17 Idaho 425
• Parties: B. S. WILSON, Respondent, v. CITY OF IDAHO FALLS, Appellant
• Court: Idaho Supreme Court

105 P. 1057

17 Idaho 425

B. S. WILSON, Respondent, v. CITY OF IDAHO FALLS, Appellant

Supreme Court of Idaho

December 18, 1909

MUNICIPAL CORPORATION-LIABILITY FOR DAMAGES-ICY SIDEWALK.

1. In an action against a city for injuries alleged to have been caused by a slippery sidewalk occasioned by the melting and freezing of snow, the travel over the sidewalk and the melting and freezing of the ice and snow thereon having left the sidewalk in a rough and slippery condition; held, that the evidence is not sufficient to show the negligence of the city or its liability.

2. Where ice and snow have not accumulated upon a sidewalk so as to create an obstruction, mere slipperiness and unevenness caused by tramping, thawing and freezing, in case of an accident, will not render the municipality liable.

(Syllabus by the court.)

APPEAL from the District Court of the Sixth Judicial District for Bingham County. Hon. James M. Stevens, Judge.

Action to recover damages alleged to have been sustained because of a rough and slippery sidewalk. Judgment for the plaintiff. Reversed.

Reversed and remanded, with instructions. Costs awarded to appellant.

J. E. Good, and Clark & Budge, for Appellant.

"The city is not liable for accidents occasioned by mere slipperiness caused by ice upon the walk, if the ice is not so rough and uneven, or so rounded up, or at such an incline as to make it an obstruction, and to cause it to be unsafe for travel with the exercise of due care." (Calder v. Walla Walla, 6 Wash. 377, 33 P. 1054; Henkes v Minneapolis, 42 Minn. 530, 44 N.W. 1026; Chicago v McGiven, 78 Ill. 347; Cook v. Milwaukee, 24 Wis. 270, 1 Am. Rep. 183; Chase v. Cleveland, 44 Ohio St. 505, 58 Am. Rep. 843, 9 N.E. 225; Broburg v. Des Moines, 63 Iowa 523, 50 Am. Rep. 756, 19 N.W. 340; Kennenberg v. Alpena, 96 Mich. 53, 55 N.W. 614; Hutchinson v. Ypsilanti, 103 Mich. 12, 61 N.W. 279; Peard v. Mt. Vernon, 31 N.Y.S. 395; Aurora v Parks, 21 Ill.App. 459; Dillon on Mun. Corp., sec. 1006; Smyth v. Bangor, 72 Me. 249; Hutchins v. Boston, 97 Mass. 272; Harrington v. Buffalo, 121 N.Y. 147, 24 N.E. 186; Greenlaw v. Milliken, 100 Me. 440, 62 A. 145; Norwalk v. Tuttle, 73 Ohio St. 242, 76 N.E. 617.)

Where a person goes upon a sidewalk known by him to be in a dangerous and defective condition, with the thought in mind at the time that the sidewalk is dangerous and defective, but with the further thought that he can get safely over it and escape such danger, in which undertaking he fails and is injured on account of the very dangerous conditions in mind, he is guilty of contributory negligence as a matter of law, and cannot recover. (Wright v. St. Cloud, 54 Minn. 94, 55 N.W. 819; Pittman v. El Reno, 4 Okl. 638, 46 P. 495; Norwood v. Somerville, 159 Mass. 105, 33 N.E. 1108; Schaefler v. Sandusky, 33 Ohio St. 246, 31 Am. Rep. 533; Macomb v. Smithers, 6 Ill.App. 470; Aurora v. Brown, 12 Ill.App. 122; Sumner v. Scaggs, 52 Ill.App. 551; Norwalk v. Tuttle, 73 Ohio St. 242, 76 N.E. 617.)

B. J. Briggs, and Wm. L. McConnell, for Respondent.

In this state cities and villages are liable in damages for the negligent discharge of the duty of keeping their streets and alleys in a reasonably safe condition for use by travelers in the usual modes. (Carson v. City of Genesee, 9 Idaho 244, 108 Am. St. 127, 74 P. 862; Moreton v. St. Anthony, 9 Idaho 532, 75 P. 262.). Where the ice and snow has been allowed to accumulate for an unreasonable length of time, and the same is in a rough and uneven condition, then liability attaches to the municipality. (Elliott on Roads and Streets, 2d ed., sec. 625; Tobin v. City of Waterloo, 131 Iowa 75, 107 N.W. 1031; Norton v. St. Louis, 97 Mo. 537, 11 S.W. 242; Cook v. Milwaukee, 24 Wis. 270.)

"If ice or snow is permitted to remain upon a sidewalk or street crossing in such an uneven and rounded form that a person cannot walk over it, using due care, without danger of falling down, it constitutes a defect for which the city or town is liable." (Collins v. Council Bluffs, 32 Iowa 324, 7 Am. Rep. 200; Todd v. Troy, 61 N.Y. 506; McLaughlin v. City of Corry, 77 Pa. 109, 18 Am. Rep. 432; Barton v. Montpelier, 30 Vt. 650; Salzer v. Milwaukee, 97 Wis. 471, 73 N.W. 20; Huston v. Council Bluffs, 101 Iowa 33, 69 N.W. 1130, 36 L. R. A. 211.)

It is not negligence per se for a person to pass over a street known to be dangerous. (7 Am. & Eng. Ency. of Law, 2d ed., 392; Carson v. Genesee, 9 Idaho 244, 108 Am. St. 127, 74 P. 862; Wells v. Village of Herman, 4 N.Y.S. 773; Koch v. Ashland, 88 Wis. 603, 60 N.W. 990; Dewire v. Bairley, 131 Mass. 169, 41 Am. Rep. 219; Ball v. City of El Paso, 5 Tex. Civ. App. 103, 23 S.W. 835.)

SULLIVAN, C. J. Stewart and Ailshie, JJ., concur.

OPINION

SULLIVAN, C. J.

This is an action against the city of Idaho Falls, a municipal corporation, to recover damages on account of personal injuries alleged to have been caused by slipping and falling upon an icy sidewalk in said city on the sixth day of February, 1908.

It is alleged in the complaint that the plaintiff slipped and fell on account of the accumulation of large quantities of snow and ice on said sidewalk, and that the city was negligent in allowing such accumulations of ice and snow on said sidewalk. The answer denies negligence on the part of the city and alleges contributory negligence on the part of the plaintiff.

Upon the issues thus made, a trial was had before the court and jury and resulted in a verdict and judgment for the plaintiff for the sum of $ 1,250. A motion for a new trial was made by the defendant city and overruled by the court. The appeal is from the judgment and the order denying a new trial.

The errors assigned go to the sufficiency of the evidence to sustain the verdict and to alleged errors of law in the admission and rejection of certain evidence offered at the trial and to the giving of certain instructions by the court.

We will first consider the sufficiency of the evidence.

It appears therefrom that the condition of the sidewalk where the plaintiff fell was icy and uneven; that about four inches of snow had fallen on the 4th of February, and that the accident occurred on the morning of the 6th of that month; that the climatic conditions of that section of the country are such that the winters are somewhat rigorous and cold; that the thawing and freezing of the snow and the travel on the sidewalk were responsible for the icy and slippery condition of the walk. It appears from the testimony of three witnesses that the exact spot where the plaintiff slipped and fell was covered with a thin coating of ice and left the sidewalk in a slippery condition; while other witnesses testified that the street was in a rough, uneven and slippery condition occasioned by the melting of the snow and the foot tracks made on it when soft and the freezing thereafter. It also appears from the evidence that the plaintiff's law office bordered on this street and was only a short distance from where the accident occurred; that he was familiar with the exact condition of the street. He knew that it was icy and slippery; he also knew that by crossing the street he could go to the postoffice, the place where he was going when the accident occurred, and avoid the ice where he fell. The question presented here is: Was the city liable for the injury sustained by the plaintiff under the evidence? After a careful review of all of the evidence, we are fully satisfied that the city was not liable. It is clear that four inches of snow on a sidewalk, traveled over and packed down by the people, would not constitute such an obstruction as would make a city liable in case an accident occurred because of the icy and slippery condition of such sidewalk.

In sec. 1006, Dillon on Municipal Corporations, 4th ed., the rule governing such conditions as above set forth is stated as follows:

"The mere slipperiness of a sidewalk, occasioned by ice or snow, not being accumulated so as to constitute an obstruction, is not ordinarily such a defect as will make the city liable for damages occasioned thereby. Where there is snow upon a sidewalk, and it is rendered slippery, there is danger of injury from slipping and falling, even on the best constructed walks."

The rule governing such cases is laid down in the following language in Calder v. City of Walla Walla, 6 Wash. 377, 33 P. 1054:

"The city is not liable for accidents occasioned by mere slipperiness caused by ice upon the walk. If the ice is not so rough and uneven, or so rounded up, or at such an incline as to make it an obstruction, and to cause it to be unsafe for travel with the exercise of due care,...