and Congdon v. Norwich (1870) 37 Conn. 414, holding the city liable, must be regarded as based on the fact that in those cases the ice was described as uneven and irregular; saying that the court, in those cases, evidently treated the distinction between smooth and rough ice as immaterial, and relied upon the controlling fact that the ice was slippery and dangerous, and had so remained for a considerable time in both cases. In Griffin v. Marion (1914) 163 Iowa, 435, 144 N. W. 1011, in answer to the contention of the city that there was no duty resting upon it, because the snow and ice had not become rounded, or worn into ridges, uneven, and irregular, but that the evidence showed that the ice on the walks was smooth, the court said: "There are cases where the controversy was as to whether the slippery condition of the walk was from natural causes, or because the ice and snow had assumed some other form by the interference of man, or other artificial causes. The rule is not limited to the snow and ice becoming ridged, rounded, or uneven, but the city is charged with the duty, when the snow and ice are made to assume some other form, or present some other danger than they would otherwise, solely from natural causes. The rule has been so stated in many of our own cases. Tobin v. Waterloo (1906) 131 Iowa, 75, at page 77, 107 N. W. 1031, and cases cited. The distinction between smooth and rough ice could be very properly made if the smooth ice is natural ice; but if it is allowed to accumulate, and is made smooth artificially, and is dangerous, we see no reason for making any distinction." And in Townsend v. Butte (1910) 41 Mont. 410, 109 Pac. 969, holding that a city is liable for injury occasioned by its failure to remove from a sidewalk under its control snow and ice which had accumulated, and formed on the sidewalk a smooth, slippery, and slanting surface over which it was dangerous for pedestrians to travel, and such condition was permitted to remain for an unreasonable time after the city had actual or constructive no tice thereof, the court said that it did not see any difference in principle between such a case and one where snow and ice, accumulated on a sidewalk from natural causes, are suffered to remain until the surface is so rough, ridged, rounded, or slanting that it is difficult and dangerous for persons traveling on foot to pass over it when exercising ordinary care, which is generally held to render the city liable for injuries resulting therefrom. An instruction that the municipality is not liable for merely having allowed an accumulation of snow and smooth ice upon the sidewalk at the place of the accident, nor for the mere slipperiness of the sidewalk at such place, occasioned by the presence of ice and snow thereon, even though water artificially thrown upon such sidewalk at that point by down spouts upon an adjoining building contributed to such ice, but that, in order to hold defendant liable, it was necessary for the plaintiff to prove that the ice and snow, upon which it was alleged that the plaintiff fell, were formed into lumps, ridges, or hills, so as to constitute a dangerous obstruction to travel upon the sidewalk,-is erroneous, and properly refused, since the defendant may be liable for the injuries alleged, although the ice was not formed into ridges or hills. Boyland v. Parkersburg (1916) 78 W. Va. 749, 90 S. E. 347. And a requested instruction, in an action to recover damages for injuries caused by a fall on a sidewalk, that there can be no recovery if the fall was caused by smooth ice or snow, is properly refused if it does not contain the qualification that the icy condition had not been permitted to remain for an unreasonable time, in view of all the circumstances. Wren v. Seattle (1918) 100 Wash. 67, 3 A.L.R. 1123, 170 Pac. 342. It was held in Townsend v. Butte (Mont.) supra, that the negligence of the city and its causal connection with the plaintiff's injuries were sufficiently shown, as against a general demurrer, by a complaint which alleged that the negligence of the city consisted in permitting ice and snow to accumulate on a sidewalk at the point where the injury occurred, forming a smooth, slippery, and slanting surface dangerous to pedestrians, in failing to remove the same after due notice, and in failing to place a warning signal at the dangerous place, and alleging that, by reason of such negligence and carelessness of the city, the plaintiff, while lawfully traveling and walking on such sidewalk at the point of the accident, slipped and fell thereon. But in Landolt v. Norwich (1871) 37 Conn. 615, the liability of the city was denied where plaintiff was injured by falling on a street of considerable public travel because of the presence of ice thereon, resulting from water which ran down from adjoining premises because of a recent rain, the ice, which was of very limited extent, being covered by a light fall of snow. The court said it could not be the rule of duty that all the sidewalks in a city should at all times be kept absolutely free from ice; that such a rule would involve expense disproportionate to the object to be accomplished, and that the course adopted by the street commissioner, who testified that he first attended to the front of public buildings and to public squares and places, then to the front of vacant lots, trusting that, by force of a city ordinance to that effect, individual citizens would promptly attend to the pavements adjacent to their premises, but that he exercised a general oversight, applying the remedy in case of an occupant's neglect, was correct and reasonable, and seemed to have been faithfully executed. Where the plaintiff charged negligence in constructing the walk which was up to grade in part and below grade in another part, a step being placed at the intersection of the two walks, which was icy and very slippery at the time, the court held that the defendant was not liable for mere slipperiness. Chicago v. Bixby (1876) 84 Ill. 82, 25 Am. Rep. 429. Nor is a city liable for an injury alleged to have resulted from an accumulation, at a certain point, of snow and ice upon a sidewalk, where it does not appear that the sidewalk was out of repair or defective, or that the accumulation of snow and ice upon the walk was so great as to constitute a nuisance or a material obstruction to ordinary travel upon the street. Bretsh v. Toledo (1894) 1 Ohio S. & C. P. Dec. 96. In Broburg v. Des Moines (1884) 63 Iowa, 523, 50 Am. Rep. 756, 19 N. W. 340, the court held that the mere fact that a street was in a dangerous condition, because of ice and snow rendering the walks and crossing slippery, by reason of the operation of natural causes, would not render the city liable, even if such ice and snow were not removed in a reasonable time. So, in Grossenbach v. Milwaukee (1885) 65 Wis. 31, 56 Am. Rep. 614, 26 N. W. 182, where the plaintiff, stepping upon the bridge or apron over a gutter on the sidewalk, fell in consequence of melting snow and water, the surface of the apron being slippery with ice, and the evidence showing no other defect which contributed to the injury, the court held that the plaintiff could not recover, as there was no defect or obstruction, mere slipperiness of itself not being sufficient to constitute liability. And a slippery condition of a sidewalk, which is a natural temporary condition caused by the weather for the time being, with constant alternations from rain to snow, and from thawing to freezing, is not a defect or an obstruction for which the city is liable. Brennan v. New York (1907) 117 App. Div. 849, 103 N. Y. Supp. 266. The same holding was reiterated in a later appeal of this case in (1909) 130 App. Div. 267, 114 N. Y. Supp. 578, affirmed, without opinion, in (1910) 197 N. Y. 544, 91 N. E. 1110. In Chamberlain v. Oshkosh (1893) 84 Wis. 289, 19 L.R.A. 513, 36 Am. St. Rep. 928, 54 N. W. 618, where there was a hole in the sidewalk filled with water, which froze up and formed a slippery and smooth surface of ice, the court held that the ice, by reason of which the plaintiff claimed she fell, was the proximate cause of the injury, and not the hole in the walk, and that therefore the defendant was not liable, the hole being only the remote cause of the accident, and not the direct, VI. Rough or uneven accumulations of While, as stated in the preceding Iowa. Collins v. Council Bluffs (1871) 32 Iowa, 324, 7 Am. Rep. 200; Huston v. Council Bluffs (1897) 101 Iowa, 33, 36 L.R.A. 211, 69 N. W. 1130, 1 Am. Neg. Rep. 227; Hodges v. Water- loo (1899) 109 Iowa, 444, 80 N. W. 523; Templin v. Boone (1905) 127 Iowa, 91, Kentucky. Jaegar v. Newport City (1910) 149 Mo. App. 520, 131 S. W. 120; Barker v. Jefferson (1911) 155 Mo. App. 390, 137 S. W. 10; Livingston v. St. Joseph (1913) 174 Mo. App. 636, 161 S. W. 304; Jackson v. Kansas City (1914) 181 Mo. App. 178, 167 S. W. 1150; Albritton v. Kansas City (1916) 192 Mo. App. 574, 188 S. W. 239; Krucker v. St. Joseph (1916) 195 Mo. App. 101, 190 S. W. 644; Studer v. St. W. 1196; Abbott v. Springfield (1919) (1891) 130 N. Y. 188, 29 N. E. 130; Williams v. New York (1915) 214 N. Y. 259, 108 N. E. 448; Hawley v. Glov- ersville (1896) 4 App. Div. 343, 38 N. Y. Supp. 647; Stapleton v. Newburgh (1896) 9 App. Div. 39, 41 N. Y. Supp. 96; McPherson v. Buffalo (1897) 13 App. Div. 502, 43 N. Y. Supp. 658, 1 Am. Neg. Rep. 490; Walsh v. Buffalo (1897) 17 App. Div. 112, 44 N. Y. Supp. 942, 2 Am. Neg. Rep. 602; Deufel v. Long Island City (1897) 19 App. Div. 620, 46 N. Y. Supp. 355; Haight v. Elmira (1899) 42 App. Div. 391, 59 N. Y. Supp. 193, 6 Am. Neg. Rep. 624; Beck v. Buffalo (1900) 50 App. Div. 621, 63 N. Y. Supp. 499; Klaus v. Buf- (1903) 85 App. Div. 623, 82 N. Y. Supp. 577; Brennan v. New York (1907) 117 App. Div. 849, 103 N. Y. Supp. 266, lat- er appeal in (1909) 130 App. Div. 267, 114 N. Y. Supp. 578, affirmed without opinion in (1910) 197 N. Y. 544, 91 N. E. 1110; Ballard v. Hamburg (1911) 143 App. Div. 719, 128 N. Y. Supp. 325; Larson v. New York (1911) 145 App. Div. 619, 130 N. Y. Supp. 257; Johnson (1888) 50 Hun, 485, 3 N. Y. Supp. 450; Jones v. Troy (1889) 22 N. Y. S. R. 276, 4 N. Y. Supp. 792, affirmed in (1891) 127 N. Y. 671, 28 N. E. 255; Goff v. Little Falls (1892) 47 N. Y. S. R. 729, 20 N. Y. Supp. 175. North Dakota. Jackson v. Grand Forks (1912) 24 N. D. 601, 45 L.R.A. (N.S.) 75, 140 N. W. 718. Pennsylvania.-McLaughlin v. Corry (1874) 77 Pa. 109, 18 Am. Rep. 432; Mauch Chunk v. Kline (1882) 100 Pa. 119, 45 Am. Rep. 364; Wyman v. Philadelphia (1896) 175 Pa. 117, 34 Atl. 621; Green v. Hollidaysburg (1912) 236 Pa. 430, 84 Atl. 785; Moore v. Philadelphia (1906) 33 Pa. Super. Ct. 194; McDevit v. Philadelphia (1908) 35 Pa. Super. Ct. 317; Wenlock v. Philadelphia (1907) 18 Pa. Dist. R. 229; Dehnhardt v. Philadelphia (1884) 15 W. N. C. 214; Fry v. Mercer (1886) 4 Pa. Co. Ct. 604; Scott v. Scranton (1898) 5 Lack. Leg. News, 73. Wisconsin. Cook v. Milwaukee (1869) 24 Wis. 270, 274, 1 Am. Rep. 183; McDonald v. Ashland (1890) 78 Wis. 251, 47 N. W. 434; Paulson v. Pelican (1891) 79 Wis. 445, 48 N. W. 715; Koch v. Ashland (1894) 88 Wis. 603, 60 N. W. 990; West v. Eau Claire (1894) 89 Wis. 31, 61 N. W. 313; Salzer v. Milwaukee (1897) 97 Wis. 471, 73 N. W. 20; Hyer v. Janesville (1898) 101 Wis. 371, 77 N. W. 729, 5 Am. Neg. Rep. 268. Canada.-Leclerc v. Montreal (1898) Rap. Jud. Quebec 15 C. S. 205; Yates v. Windsor (1912) 3 Ont. Week. N. 1513, 22 Ont. Week. Rep. 608, 3 D. L. R. 891; Touhey v. Medicine Hat (1912) Alberta, 7 D. L. R. 759, affirmed in (1913) 5 Alberta L. R. 116, 10 D. L. R. 691, 23 West. L. R. 880. In Williams v. New York (1915) 214 N. Y. 259, 108 N. E. 448, where the plaintiff fell on a walk covered with rough ice about 2 inches thick, it was suggested as a defense that the law will not take into account a slight thickness of ice, but the court said, in overruling this suggestion, that a surface of rough ice 2 inches thick may be as perilous to the wayfarer as if it were a foot in thickness. If a municipality is negligent in allowing ice and snow upon a sidewalk to become and remain rough and uneven, it cannot avoid liability for injuries caused thereby, by showing that freezing weather, following a thaw, and rain and sleet the night previous, added to the iciness or slippery condition of the walk. Templin v. Boone (1905) 127 fowa, 91, 102 N. W. 789. And a city is responsible for injuries suffered by one who fell on a walk because of the rough surface of the snow and ice which it had had an opportunity to remove, though it was made more dangerous by a recent fall of sleet, provided the injury would not have been sustained but for the uneven condition due to the older snow and ice. Hodges v. Waterloo (1899) 109 Iowa, 444, 80 N. W. 523. And in Larson v. New York (1911) 145 App. Div. 619, 130 N. Y. Supp. 257, where the city failed to remove snow from a walk, and it was worn into ruts and ridges which a later storm covered with ice, the city was held liable, because of its failure to remove the first snow, to one who slipped on the ice and was injured. But in Johnson V. Glens Falls (1891) 41 N. Y. S. R. 820, 16 N. Y. Supp. 585, where it appeared that ice and snow, which had accumulated upon the sidewalk, were suffered to remain there for many days prior to the accident, and to become rounded and ridgy along the center of the walk, and subsequently, anu prior to the accident, more snow fell and froze, covering the streets with a hard crust of ice, none of which had been removed when the plaintiff fell, the court held that the plaintiff could not recover, as the fall was on the fresh ice, as to which the defendant was not chargeable with negligence, the question as to whether the old ice and snow contributed to the accident not being before the jury. The decision in the Johnson Case was followed in Lawless V. Troy (1892) 44 N. Y. S. R. 735, 18 N. Y. Supp. 506, where the facts were simi lar, the plaintiff testifying, first, that she slipped on the new snow, and, second, that she slipped on the old ice, the court holding that unless the latter was a concurring cause of the accident the city was not liable. To the same effect see Masters v. Troy (1888) 50 Hun, 485, 3 N. Y. Supp. 450; Pomfrey v. Saratoga Springs (1887) 104 N. Y. 460, 11 N. E. 43; Taylor v. Yonkers (1887) 105 N. Y. 202, 59 Am. Rep. 492, 11 N. E. 642. A person injured by falling in consequence of a coating of ice recently formed over an old obstruction or ridge of ice and snow on the street cannot recover against the city. Tobey v. Hudson (1888) 49 Hun, 318, 2 N. Y. Supp. 180. And a city cannot be held liable for an injury caused by an icy sidewalk, when the roughness and unevenness at the point of injury were only such as were occasioned by footprints made in the slush and wet snow of the previous day, which had frozen the night before the accident. Vonkey v. St. Louis (1909) 219 Mo. 37, 117 S. W. 733. But a city may be held liable where the evidence shows that a portion of a sidewalk has remained covered during the whole winter with ice and snow, which have been allowed to thaw and freeze and accumulate during such time, and that such ice and snow were trampled into ruts, mounds, humps, and hillocks by the pedestrians during a thaw, and frozen in such condition, and that after a snowstorm, which later fell upon and largely hid the same, plaintiff slipped and fell thereon. Jackson v. Grand Forks (1912) 24 N. D. 601, 45 L.R.A.(N.S.) 75, 140 N. W. 718. The refusal of the defendant's request for a peremptory instruction is not erroneous, where the evidence of the plaintiff tends to show that heavy snow had fallen about a week before the injury, and had not been removed from the sidewalk at the place of the accident, and that the pedestrian travel, which was heavy, had beaten down a pathway about 18 inches wide, and, with the aid of alternate freezing and thawing, the path had been con verted into ice, and at the place in question had formed ridges and mounds which made the surface extremely ragged, uneven, and dangerous, beyond the generally dangerous condition produced by natural causes, and this condition had continued for three or four days. Albritton v. Kansas City (1916) 192 Mo. App. 574, 188 S. W. 239. If there is an accumulation of ice in such ridges or inequalities as would be liable to trip pedestrians, and which, for that reason, constitutes an obstruction to travel, a city, in case of resulting injury, is liable, provided it has knowledge of such obstruction, or the obstruction has existed for such a length of time that the exercise of ordinary care on the part of the city would have enabled it to discover its presence. Varney v. Covington (1913) 155 Ky. 662, 160 S. W. 173. In Smith v. Cloquet (1912) 120 Minn. 50, 139 N. W. 141, it was held that a case of negligence was made out for which the city was liable, where, as a result of the use by boys of the sidewalk of a much-frequented thoroughfare for coasting, a sloping ridge 4 or 5 inches high had been formed in the center of the walk, and there was evidence of unevenness and roughness caused by travel, sufficient to justify the conclusion that it was unsafe and dangerous for travel, which condition was shown to have existed for a sufficient time to charge the city with notice. And in Livingston v. St. Joseph (1913) 174 Mo. App. 636, 161 S. W. 304, the court upheld a judgment for the plaintiff, where it appeared that four or five days preceding her fall a 3-inch snow had fallen, and on the morning of the day she fell 1 inch more was added; that water escaping from a hydrant, which had been leaking for a considerable period of time, ran off the adjoining premises and onto the sidewalk, making a flood at the place of the accident, and, the weather being cold, froze unevenly, some spots being from 2 to 4 inches higher than others, and that one of those abruptly higher places caused the plaintiff to slip and fall. |