Browder v. City of Winston-Salem , 231 N.C. 400 ( 1950 )

57 S.E.2d 318 (1950) 231 N.C. 400

BROWDER
v.
CITY OF WINSTON SALEM et al.

No. 747.

Supreme Court of North Carolina.

February 3, 1950.

Eugene H. Phillips, Winston-Salem, for plaintiff appellant.

Womble, Carlyle, Martin & Sandridge, Winston-Salem, for defendant appellee City of Winston-Salem.

Deal & Hutchins, Winston-Salem, for defendant Alexander Apartment Company, appellee.

BARNHILL, Justice.

The plaintiff bottoms her case against the defendant corporation on the allegation that it negligently permitted "much of the rain, melted snow, and other waters that fell, formed on, or were collected on the roofs, bay windows, gutters, and other portions of the premises there maintained * * * to fall and drain onto the public sidewalk and that the waters so draining and falling onto the public way frequently formed into ice, thereby unlawfully obstructing the use of the said sidewalk and rendering the same unsafe for pedestrian travel" and that it negligently permitted such condition to develop on the days immediately preceding her injuries.

There is testimony that at times water seeped from the gutters and eaves of the building and dripped on the sidewalk. The record, however, is devoid of any evidence that such seepage occurred on the days preceding the accident complained of. There is no testimony that any water coming from the building appreciably increased the thickness or slipperiness of the condition formed by nature or in any wise enhanced the hazard thereof.

Plaintiff testified that she slipped and fell. While she did not undertake to exlain the cause, we may assume that it was due to the slipperiness of the icy layer of snow. Even so, slipping and falling alone is not sufficient to establish negligence. There must be some evidence that the defendant in fact was a party to the creation of the condition which caused her fall.

It is true there is evidence that on the morning of the 27th the "packed down" snow in front of the building was somewhat thicker than on the north side of the street and other exposed places. That is understandable, for it is a matter of common knowledge that snow and sleet on the north side of a building, or in low places, or in forests where it is sheltered from the sun will remain for days after the temperature has risen well above freezing. Frequently, it does not disappear until after a rain comes. State v. Baldwin, 226 N.C. 295, 37 S.E.2d 898; State v. Vick, 213 N.C. 235, 195 S.E. 779. Certainly the mere circumstance of the relative thickness of the layer of packed snow in front of the building, under the circumstances here disclosed, will not justify the inference that water dripping from the building produced the condition. Even if it did, we may not say, on this record, that the added thickness enhanced the obvious hazard to pedestrians. For cases bearing on the liability of an abutting owner for injury resulting from the presence of ice and snow on the sidewalk see Annotation, 34 A.L.R. 409.

In its original answer the defendant city pleaded its ordinance requiring property owners to keep the sidewalk in front of their premises free of ice and snow and alleged that if it were negligent then its liability is only secondary. This section was stricken by order of the court and an amended answer was filed.

The plaintiff sought to introduce this section in the original answer, and also the ordinance, as against the city, but not as against the defendant corporation. Both, on objection, were excluded and plaintiff excepted.

Unquestionably the affirmative statement in the original answer, if pertinent and material, was admissible in evidence. Adams v. Utley, 87 N.C. 356; Winborne v. McMahan, 206 N.C. 30, 173 S.E. 278; Stansbury, N.C.Evidence, 380. But the allegation offered in no wise tends to establish negligence on the part of the city. It expressly denied negligence and merely sought the protection of the doctrine of primary and secondary liability in the event of an adverse verdict. The exception to the exclusion of the tendered paragraph of the original answer is without merit.

Nor was there error in the exclusion of the ordinance. Neither its enactment nor its existence tends to prove negligence on the part of the city in failing to remove the sleet and snow from the sidewalk. Indeed, it tends only to show that the city had provided a way for the prompt removal thereof. The exclusion of the ordinance, if prejudicial, was harmful to the city rather than to the plaintiff. Calder v. City of Walla Walla, 6 Wash. 377, 33 P. 1054.

The testimony tends to show that the defendant city had not removed all of the "sleety" snow from the sidewalks on the second morning after a general precipitation. There is no evidence that the condition in front of the apartment house was so exceptional in nature as to demand prior or preferential attention. This, in our opinion, is insufficient to warrant an inference of negligence such as would require the submission of issues to a jury. Hawkins v. City of N. Y., 54 A.D. 258, 66 N.Y.S. 623; Harrington v. City of Buffalo, 121 N.Y. 147, 24 N.E. 186; Swan v. Indiana, 242 Pa. 596, 89 A. 664; Zunz v. New York, Sup., 103 N.Y.S. 222; Byington v. City of Merrill, 112 Wis. 211, 88 N.W. 26; Bailey v. Oil City, 305 Pa. 325, 157 A. 486, 80 A.L.R. 1148; Holbert v. City of Philadelphia, 221 Pa. 266, 70 A. 746, 20 L.R.A.,N.S., 201.

The mere slipperiness of a sidewalk occasioned by smooth or level ice or snow, formed by nature, is not sufficient to charge the municipality with liability for an injury resulting therefrom where the walk itself is properly constructed and there is no such accumulation of ice and snow as to constitute an obstruction. Cresler v. Asheville, 134 N.C. 311, 46 S.E. 738; Annotations, 13 A.L.R. 18; 80 A.L.R. 1154.

As a general rule a municipality is not liable for injuries caused by the formation of ice and snow from natural causes where the sidewalk itself is properly constructed, Annotation, 80 A.L.R. 1154, if there are no dangerous slopes or ridges and the ice or snow has not been permitted to remain on the sidewalk so long that it has become so rough and uneven that it is difficult or dangerous for persons to pass over it. Annotation, 80 A.L.R. 1156.

Other authorities which discuss the liability of a municipality, under varying circumstances, for conditions caused by ice or snow may be found in Annotations, 13 A.L.R. 18 and 80 A.L.R. 1151.

Since we are of the opinion the plaintiff has failed to make out a case of negligence as against either defendant, we need not discuss or decide the contention that in any event the plaintiff was contributorily negligent.

The judgment below is

Affirmed.