Jackson v. City of Grand Forks

Bruce, J.

(after stating the facts as above). Counsel for defendant and appellant' urges that the proof shows contributory negligence on the part of the plaintiff, as a matter of law. We cannot, and do not, so hold. He urges that “the testimony discloses that she (the plaintiff) traveled over the walk almost daily, and was aware of its condition with reference to the accumulation of snow and ice. During the afternoon she had traveled over this sidewalk and had noticed its condition, and knew that several inches of snow covered the ice beneath. She could have avoided passing over this portion of the sidewalk, as the passage on either side was free from snow and ice. The accident was not caused by striking any obstacle. She slipped on the ice and fell. It is left entirely to conjecture whether she slipped on a perfectly smooth piece of ice or on a piece of rough ice; consequently she assumed all the risks of accident when she traveled over this walk.” We may assume, and perhaps the evidence justifies us in assuming, the truth of all of these statements, with the exception of the conclusion, and that “the passageway on either side was free from snow and ice.” On the latter question we think there is abundant evidence to show, or, at any rate, from which the jury might infer, that the whole sidewalk was covered with ice; that there was merely a path in the center more or less traveled and trampled down, and that the freedom from ice was on the sides, outside the sidewall?:. The assumptions we have made, however, in no way support the contention of appellant. The point, in fact, has been so thoroughly passed upon by this court in previous decisions that it is no longer subject to controversy. “The question of negligence,” saysz ex-Ohief Justice Young, in the case of Pyke v. Jamestown, 15 N. D. 157, 107 N. W. 359, “whether it be of a defendant or the alleged contributory negligence of a plaintiff, is primarily and generally a question of fact for the jury. The question becomes one of law, authorizing its withdrawal from the jury only when but one conclusion can be drawn from the undisputed facts. ‘If the undisputed facts are of such a character that reasonable men might draw different conclusions or deductions therefrom, then the question of negligence must he sum-mi tted to the jury.’ . . . The plaintiff was required to exercise such care as the condition of the street and her knowledge of it made reasonable under the circumstances. A traveler is not required to fore-go traveling upon a sidewalk because he has knowledge that it is defective. He has, as a general rule, a right to assume that it is safe, and when he is injured as a consequence of a defect of which he had previous knowledge, the mere fact of his previous knowledge does not, per se, establish contributory negligence. And this is also the rule when previous knowledge is coupled with absence of thought concerning the defect at the time of the injury, or momentary forgetfulness of it. Previous knowledge of a defect and forgetfulness of it are important facts to be considered in connection with all other circumstances, in determining whether the party injured was exercising reasonable care; but it is not negligence as a matter of law for a person who has knowledge of a defect not to remember it at all times and under all circumstances. The foregoing rules, which are founded upon reason and experience, are of general acceptance.” See also Ouverson v. Grafton, 5 N. D. 281, 65 N. W. 676; Heckman v. Evenson, 7 N. D. 173, 182, 73 N. W. 427, 430; Johnson v. Fargo, 15 N. D. 525, 108 N. W. 243, 20 Am. Fleg. Rep. 460; Carr v. Minneapolis, St. P. & S. Ste. M. R. Co. 16 N. D. 217, 112 N. W. 972; Solberg v. Schlosser, 20 N. D. 307, 30 L.R.A.(N.S.) 1111, 127 N. W. 91; Wells v. Lisbon, 21 N. D. 34, 128 N. W. 308; Snee v. Clear Lake Teleph. Co. 24 S. D. 361, 123 N. W. 729 ; Smith v. Yankton, 23 S. D. 352, 121 N. W. 848; Muri v. White, 8 N. D. 59, 76 N. W. 503; Cameron v. Great Northern R. Co. 8 N. D. 124, 133, 77 N. W. 1016, 5 Am. Neg. Rep. 454. Hnder the rules laid down in these cases, and especially in the case of Pyke v. Jamestown, above quoted from, we are precluded from holding that as a matter of law the plaintiff was guilty of contributory negligence in this case. It was a question of fact for the jury, and not one of law for this court.

In passing upon this appeal we cannot be controlled by the fact that there is a conflict in the testimony. It is and must be sufficient for us that there is abundant testimony tending to support the contention of the plaintiff and respondent, if taken by itself. The rule seems to be well established both in this and other jurisdictions, that “as a general rule, if there is any evidence which, standing alone, or considered apart from the opposing evidence, is, if believed by the jury, legally sufficient or might reasonably tend to support the verdict, though such evidence may not be of an entirely certain and satisfactory nature, it will not be disturbed; for upon the mere weight of evidence the jury are the judges, and though the evidence would not have satisfied the mind of the appellate court upon an original investigation, yet it will not sit to weigh conflicting testimony. . . . Inferences of fact are to be deduced by the jury, and whenever there is evidence from which the existence of facts sufficient to support a verdict might have been inferred, the verdict will not be disturbed.” 3 Oyc. 348. In support of a verdict, indeed, the appellate court will consider the evidence on behalf of respondent in its most favorable light. All reasonable inferences and deductions are to be made in his favor. All conflicts in the testimony are resolved in favor of the respondent, and the court will take as true the strongest view of the testimony in his favor. Illinois C. R. Co. v. Abernathey, 106 Tenn. 722, 64 S. W. 3; Muri v. White, 8 N. D. 59, 76 N. W. 503; Howland v. Ink, 8 N. D. 63, 76 N. W. 992; Cameron v. Great Northem R. Co. 8 N. D. 124, 77 N. W. 1016, 5 Am. Neg. Rep. 454; Nicoud v. Wagner, 106 Wis. 67, 81 N. W. 999. No matter what the evidence of the defendant may be, there is no little evidence on the part of the plaintiff to show that the walk in question had not been cleaned at any time during the winter, and the snow had been permitted to collect and remained upon the walk. There had been warm days during the winter, and the snow thus permitted to gather and collect had melted, or, rather, softened, and the trampling of pedestrians had caused it to form in mounds, hummocks, hillocks, and humps, etc.; that the mounds thus formed ranged in height from an inch to 4 inches; that this condition extended all over the walk, and that though perhaps the roughness had been increased by the thaw on the Sunday previous to the accident, the walk had remained rough and dangerous for a long space of time, and that at no time was there any attempt either to remove the ice and snow or to place sand or ashes or gravel thereon, so as to render it less dangerous. So, too, there is no attempt to prove by either party that the snow which fell on Monday and Tuesday was removed from the walk, or attempted to be so removed. There is also evidence on the part of the plaintiff whieh tends to show that the other walks in the southern portion of the city were, as a rule, in a much better condition, and that the walk in question and that in front of what is known as the Duis Warehouse, were the worst walks in the area in question.

There seems to be no little conflict on the general proposition of the liability of cities for accidents occasioned from icy sidewalks. It seems to be generally conceded that the municipality is not liable in all instances, and especially not liable for ice which suddenly is formed by sleet or rain which freezes before it can be reasonably removed, or for snow which has been packed down under the same circumstances. Perkins v. Fond du Lac, 34 Wis. 435; Grossenbach v. Milwaukee, 65 Wis. 31, 56 Am. Rep. 614, 26 N. W. 182; Chamberlain v. Oshkosh, 84 Wis. 289, 19 L.R.A. 513, 36 Am. Rep. 928, 54 N. W. 618. Some courts even go further and seem to hold that a city is not liable in any event, unless there is palpable defect in the construction of the walk. The general rule, and, we believe, the better rule, however, is that the liability should be based upon negligence and upon what is reasonable under the circumstances, paying -attention to the climatic conditions. What would be reasonable, for instance, in southern Illinois might not be reasonable in FTorth Dakota or Montana, but reasonableness, and a reasonable regard for public safety, should be the criterion. The municipality under this rule is bound merely to exercise reasonable care and diligence to render the sidewalk safe. Where the sidewalk is properly constructed, the mere fact that it is rendered slippery by the presence of ice or snow will not, in itself, render it liable for resulting injuries. Where, however, snow ór ice is suffered to remain for a long time until it forms into mounds or ridges, and becomes, itself, an obstruction, as it were, to the sidewalk, or on account of its depth and quantity, a mass which in every thaw may be trampled into deep ruts and ridges, which, in the night following or in a close succeeding freeze, may become dangerous and occasion for further obstruction, the municipality may be held liable. It will be held liable, if not for the accumulation, then for not using reasonable means, such as scattering sand, gravel, or ashes, to prevent the danger. If, indeed, the. evidence in the case before us had not shown that the ice and snow had been allowed to accumulate at this part for a long period of time, and that the place was much more dangerous and obstructed than the sidewalks in the locality, generally, we would have hardly felt like sustaining the verdict. The evidence, however, being such as it is-, we feel restrained from interfering with it. We believe this view of the case is abundantly supported by the authorities. Even Wisconsin, which is cited by appellant in support of his proposition that mere slipperiness or hardened snow will not render a city liable, is authority for it. In Cook v. Milwaukee, 24 Wis. 270, 1 Am. Rep. 183, that court says: “If, however, ice or snow is suffered to remain upon a sidewalk in such uneven or rounded form that a person cannot walk over it using due care, without danger of falling down, that, it seems, does constitute a defect for which the city or town will be liable.” In the case of Salzer v. Milwaukee, 97 Wis. 471, 73 N. W. 20, indeed, we find a case which is very similar to the one at bar. The action was for the recovery of damages for an injury which the plaintiff received by falling upon an icy sidewalk. The evidence tended to show that “for a long time prior to plaintiff’s accident, snow and ice had been suffered to remain on the sidewalk, until it had become a large accumulation at the place of the accident, where, by reason of the travel passing over it, it had become uneven, slippery, and dangerous; that on the day preceding the accident there had been a new fall of snow, accompanied by a thawing condition which melted the old snow and removed much of it; that travel over the new snow and the slush of the old made the whole uneven and full of deep tracks; that during the night previous to the accident the weather turned suddenly cold and caught this soft snow and slush in this condition and turned it into hard aud glassy ice, with all this unevenness upon it; during the next morning the plaintiff, in attempting to pass over it, fell and was injured. lie knew of its condition before he came upon it.” There was a demurrer ore terms, motion for a nonsuit, a special verdict, and motion for a new trial. The supreme court, it is true, reversed the judgment, but only because of inconsistencies in the special verdict. On the question of liability it said: “The point urged against the adequacy of the complaint is that it alleges merely an icy and unsafe condition of the sidewalk at the time of the accident, caused by a sudden change of weather. It is urged that the defendant cannot be held responsible for that condition. It is true that for a defect in a sidewalk which is mere iciness or slipperiness produced by natural causes, the city is not responsible, yet when such condition concurs with a previous defect for which the city is responsible, the city is liable for damages. . . . The complaint alleges such previous defective condition by reason of snow and ice which had been suffered to accumulate there in an uneven, slippery, and dangerous condition. It also alleges that such condition had continued for a long time. It was not error to overrule the demurrer ore terms.” See also 15 Am. & Eng. Enc. Law, 2d ed. 447; Paulson v. Pelican, 19 Wis. 445, 48 N. W. 715; Collins v. Council Bluffs, 32 Iowa, 324, 7 Am. Rep. 200; Huston v. Council Bluffs, 101 Iowa, 33, 36 L.R.A. 211, 69 N. W. 1130, 1 Am. Neg. Rep. 227; Templin v. Boone, 127 Iowa, 91, 102 N. W. 789; Tobin v. Waterloo, 131 Iowa, 75, 107 N. W. 1031; Storm v. Butte, 35 Mont. 385, 89 Pac. 726.

The question is, aPer all, a question of public policy, which the legislature should primarily determine, and it is perhaps well to call attention to the fact that during the session of 1909 a bill was introduced in the legislature, as house bill No. 62, which sought to exempt cities from liability in such cases. The bill failed of passage. This action was, of course, subsequent to the accident in question, and is not controlling in this case. It is a fact, however, which is well worthy of notice.

There is no merit in the objection that the complaint does not allege, and the proof does not show, notice to the city. The complaint alleges “that of all the foregoing facts and conditions the defendant had due notice and knowledge;” and the evidence, at least the evidence of plaintiff’s witnesses,.tends to show that the ice and snow was allowed to accumulate during the whole of the winter. This would be sufficient notice under any and all of the authorities.

Objection is also made to the introduction in evidence of the charter of the city, and the ordinances of the city of Grand Forks. The provision of the charter (subdivision 14, § 47) reads as follows: “The council shall have power to regulate the use of sidewalks and all structures thereunder, and to require the owner or occupant of any premises to keep the sidewalks in front and along the same free from snow or other obstruction.” Section 2770, Pev. Codes 1905, reads: “All money collected from special assessments for building or repairing sidewalks shall be kept in a fund to be called -Sidewalk Special Assessment Fund/ and warrants shall be drawn on such funds for the payment of the cost of building and repairing all sidewalks, and the city shall in no case be liable on any contract for the building or repairing of sidewalks for any sum whatever raised by taxation.” Section 108 of the ordinances provides: “The occupant of each and every parcel of land, and the owner of each and every unoccupied lot or parcel of land, in the city, adjoining any street and along which sidewalks have been built, shall clear the sidewalks on or along such lot or piece of land of all accumulations of snow and ice, within ten hours after the same has fallen or accumulated, or by 2 o’clock in the afternoon of the following day if the same shall have fallen in the nighttime, and shall keep such sidewalks free from accumulations of snow, provided that no person shall be required to clean said sidewalks during the continuance of any snow storm on Sunday. Any person who shall violate the provisions of this section shall, upon conviction, be subject to a fine of not less than $5 or more than $25, and a like fine for every 8 days’ continuance of such failure to observe the provisions of this section.” The objection made on the trial to the introduction of these provisions of the charter was that “it was incompetent, irrelevant, and immaterial, not necessary to offer a statute in evidenceand of the ordinances, that it was “incompetent, irrelevant, and immaterial, not binding upon the city in any action of this kind.” The objection made in the brief and argument of counsel is that the charter of the city and ordinances were not pleaded, and in addition thereto, that they were incompetent and immaterial. It is quite clear that the first of these objections cannot be relied upon here, as it was not raised upon the trial. Even if it can he raised under this objection, we think there is no merit in it. Charter provisions and ordinances only need to be pleaded when a violation of them is the foundation of the action, and in none of the cases cited by counsel for appellant was the action brought against the city, but against some third person who was charged with having violated an ordinance, or against whom the ordinance was sought to be introduced in evidence. The cases he cites are Blanchard v. Lake Shore & M. S. R. Co. 126 Ill. 416, 9 Am. St. Rep. 680, 18 N. E. 803; Richter v. Harper, 95 Mich. 227, 54 N. W. 770; Gardner v. Detroit Street R. Co. 99 Mich. 182, 58 N. W. 51, 4 Am. Neg. Cas. 163; West Jersey R. Co. v. Paulding, 58 N. J. L. 178, 33 Atl. 381. These cases are not in point. In the case at bar no right of recovery is sought under the ordinances, but the sáme are introduced in an action against the city merely for the purpose of showing an admission, as it were, by such city, and an assumption by it of responsibility for the ice and snow upon the sidewalks, and on the questions of contributory negligence the right of the plaintiff to rely on such assumption. In such a case such ordinances can be introduced, even without being pleaded. They are competent and relevant, not because a recovery is sought thereunder, but because, as we have before stated, they are evidence of an assumption of control by the city. It is, indeed, well established in the authorities that such assumption of control is pertinent evidence in a case. It has been held, for instance, that a city is not primarily liable for failing to light its streets, or for establishing a system of street lighting, but that if, on the other hand, it has assumed the duty of lighting, it will be expected and required to do so in a reasonably safe manner, and that the public may rely upon its reasonable performance and its reasonable continuance. See Bloomington v. Bay, 42 Ill. 503, 508; Joliet v. Verley, 35 Ill. 58, 85 Am. Dec. 342; Miller v. Bradford, 186 Pa. 164, 40 Atl. 409; Birmingham v. Starr, 112 Ala. 98, 20 So. 424; Prather v. Spokane, 29 Wash. 549, 59 L.R.A. 346, 92 Am. St. Rep. 923, 70 Pac. 55; Rowe v. Ballard, 19 Wash. 1, 52 Pac. 31; Taake v. Seattle, 18 Wash. 178, 51 Pac. 362; Brabon v. Seattle, 29 Wash. 6, 69 Pac. 365. The fact that in this case the city had imposed upon the lot owners the duty of cleaning the ice from the sidewalks, and it had made it an offense not to do so, surely was pertinent evidence of an assumption by the city of that duty, or of its understanding that such duty was devolved upon it. It would be a poor argument, indeed, that a lotowner and taxpayer could be fined under the city ordinances for not cleaning the ice from his sidewalk, but that he had no right to rely upon the enforcement of such ordinances against others; or that, when it came to the question of his own individual safety, that the city had nothing to do with the safety of the thoroughfares in this respect. We think that the charter and ordinances were admissible in evidence, and that there is abundant authority in support of our holding. Providence v. Clapp, 17 How. 161, 15 L. ed. 72; Lincoln v. Power, 151 U. S. 436, 38 L. ed. 224, 14 Sup. Ct. Rep. 387; Pomfrey v. Saratoga Springs, 104 N. Y. 459, 11 N. E. 43; Levy v. Salt Lake City, 5 Utah, 302, 16 Pac. 599; 6 Thomp. Neg. Sec. 7868, p. 768; McNerney v. Reading, 150 Pa. 611, 25 Atl. 57; Putnam v. Detroit United R. Co. 164 Mich. 342, 129 N. W. 860; Robertson v. Wabash, St. L. & P. R. Co. 84 Mo. 119; Faber v. St. Paul, M. & M. R. Co. 29 Minn. 465, 13 N. W. 902.

Such being our conclusions in the case, it follows that the instructions of the court to the jury were, to all intents and purposes, correct, and imposed no prejudice upon the defendant.

The judgments of the District Court are each affirmed.