CALDER v. CITY OF WALLA WALLA, 6 Wash. 377; 33 P. 1054 (1893).


No. 886.

SUPREME COURT OF WASHINGTON


May 23, 1893, Decided
Appeal from Superior Court, Walla Walla County.

Court: Judgment reversed.

Syllabus: NEGLIGENCE--ICY SIDEWALKS--LIABILITY OF CITY.
A city is not liable for damages for injuries received from
falling on an icy sidewalk 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.
Where there is testimony tending to show that an accident
was due to the slipperiness and smoothness caused by the ice
upon a walk, it is error for the court to refuse to instruct
the jury that "mere slipperiness of the sidewalk, occasioned
by ice or snow, not being accumulated so as to cause an
obstruction, is not ordinarily such a defect as will make
the city liable for damages occasioned thereby."

Counsel: W. T. Dovell, and J. G. Thomas, for appellant.

Judge(s) SCOTT, J. DUNBAR, C. J., and HOYT, STILES and
ANDERS, JJ., concur.

Opinion By: SCOTT
The opinion of the court was delivered by
SCOTT, J.--Respondent brought an action against the city
to recover damages for injuries caused him by falling upon a
sidewalk, and, obtaining a judgment therefor, the city
appealed. Certain questions are raised as to the refusal of
the court to grant a motion for a non-suit, and to permit an
ordinance to be introduced in evidence, and also for
refusing to give certain instructions requested by the
defendant. No brief was filed by the respondent.
It is questionable whether enough appears from the
testimony to show that the ice had accumulated to such an
extent, or was in such a condition, as to render it an
obstruction to travel. 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, there is no liability. Henkes v. City of Minneapolis,
42 Minn. 530 (44 N.W. 1026); City of Chicago v. McGiven, 78
Ill. 347; Cook v. City of Milwaukee, 24 Wis. 270; Chase v.
City of Cleveland, 44 Ohio St. 505 (9 N.E. 225); Broburg v.
City of Des Moines, 63 Iowa 523 (19 N.W. 340). But the
question as to the refusal of the court to grant the motion
for a non-suit is unimportant now, for the case must be
reversed on other grounds, and, if a new trial is had, the
testimony may be more explicit as to some of the points
involved.
Assuming that there was enough in the testimony of the
plaintiff to show that the ice was so rough and uneven as to
be an obstruction to travel, and to render it unsafe for a
person to walk thereon exercising reasonable care, and that
the accident was due to this, there was other testimony
which showed that the accident was due to the slipperiness
and smoothness caused by the ice upon the walk; and the
defendant's first instruction, requesting the court to
instruct the jury that "mere slipperiness of the sidewalk,
occasioned by ice or snow, not being accumulated so as to
cause an obstruction, is not ordinarily such a defect as
will make the city liable for damages occasioned thereby,"
should have been given, there being testimony to found the
same upon as aforesaid, and the legal proposition involved
being well established, as shown by the authorities cited.
The ordinance in question was one requiring persons
occupying property abutting on streets where sidewalks were
laid to keep the same clear from snow and ice, and in case
of vacant lots such duty was imposed upon the owner. The
defendant was entitled to have this ordinance admitted in
evidence to show that it had provided a way for keeping the
sidewalks clear from obstruction, and it was authorized to
wait a reasonable time for the persons upon whom the duty
was imposed to comply with the provisions of the ordinance.
Taylor v. City of Yonkers, 105 N.Y. 202 (11 N.E. 642).
Judgment reversed.
DUNBAR, C. J., and HOYT, STILES and ANDERS, JJ., concur.