Zellers v. Seattle Lodge, No. 92, B.P.O.E.

• Decision Date: 26 December 1916
• Docket Number: 13624.
• Citation: 161 P. 834,94 Wash. 32
• Parties: ZELLERS v. SEATTLE LODGE, NO. 92, B. P. O. E., et al.
• Court: Washington Supreme Court

161 P. 834

94 Wash. 32

ZELLERS v. SEATTLE LODGE, NO. 92, B. P. O. E., et al.

No. 13624.

Supreme Court of Washington

December 26, 1916

Department 1. Appeal from Superior Court, King County; Everett Smith Judge.

Action by Joseph Zellers against Seattle Lodge, No. 92, Benevolent and Protective Order of Elks, and another. From a judgment of dismissal, plaintiff appeals. Judgment affirmed.

J. P Ball and Wm. T. C. Ball, both of Seattle, for appellant.

Geo. H Rummens, Geo. F. Aust, and Farrell, Kane & Stratton, all of Seattle, for respondents.

PER CURIAM.

Action for personal injuries. It is alleged in the complaint, in substance, that the Elks' Investment & Construction Company, a corporation, is the owner of a lot and building located at the southwest corner of Fourth avenue and Spring street in the city of Seattle; that Seattle Lodge, No. 92 Benevolent and Protective Order of Elks, a voluntary unincorporated associatioin, was the lessee in possession of the premises; that Fourth avenue and Spring street are public highways and principal thoroughfares of the city with a decided downward pitch from Fourth avenue on Spring street westward; that during the first three days of February, 1916 the city of Seattle was visited by a heavy snow storm with thaws and freezes, which covered the streets and sidewalks of the city with snow and ice to a great depth; that defendants 'carelessly, negligently, and unlawfully' allowed such snow and ice to accumulate and be on the sidewalk adjoining their premises; that on February 4, 1916, plaintiff while walking along Spring street adjoining defendants' premises slipped on the snow and ice, fell, and sustained injuries for which he demands judgment in the sum of $10,700. The court sustained a general demurrer to the complaint. Plaintiff refusing to plead further, a judgment of dismissal was entered. Plaintiff appealed.

Appellant argues that, because the complaint charged that respondents 'carelessly, negligently, and unlawfully' permitted the snow and ice to accumulate, the court erred in sustaining the demurrer. This presents the sole question for our determination.

It will be noticed that the facts alleged show that the snow and ice accumulated in a short time and through natural causes. There is no allegation of any facts constituting negligence at common law. Griswold v. Camp, 149 Wis. 399, 135 N.W. 754. Nor is there pleaded any ordinance of the city making it the duty of the abutting property owner to keep the sidewalks clear of snow and ice so accumulating, and we have no statute imposing such duty. The general allegation that respondents carelessly, negligently, and unlawfully permitted snow and ice to accumulate is therefore unsupported by any specific allegation of fact. It is a mere conclusion not following from any of the facts alleged. The law is thus succinctly expressed in 13 R. C. L. p. 415,§ 341:

'In the absence of a statutory provision to the contrary, the owner or occupant of property owes no duty to pedestrians to keep the sidewalk in front of it free from ice and snow coming thereon from natural causes, or to guard against the risk of accident by scattering ashes or using other like precautions, and will not be liable in damages to persons injured by reason of his failure to do so.'

The taxt quoted is amply sustained in all of its breadth by the authorities. Hartford v. Talcott, 48 Conn. 525, 40 Am. Rep. 189; Kirby v. Boylston Market Ass'n, 14 Gray (Mass.) 249, 74 Am....