190 P. 233 | Utah | 1920
The plaintiff obtained judgment against Salt Lake City for damages for personal injuries which she sustained by falling on one of the sidewalks of said city, and the city appeals.
The plaintiff, in her third amended complaint, after stating the necessary matters of inducement, alleged that during
The appellant filed its answer to the complaint, in which, after admitting the matters of inducemtnt, and denying all negligence, it, as affirmative defenses, averred: (1) Contributory negligence; (2) that the injuries were caused by natural causes over which appellant'had no control; and (3) that the plaintiff had not presented her claim for damages as provided by our statutes, stating the particulars.
Our statute (Comp. Laws Utah 1917, section 816), which was in force when this action was commenced, so far as material here reads as follows:
“Every claim against an incorporated city or town for damages or injury alleged to liave been caused by the defective, unsafe, dangerous, or obstructed condition of any street, alley, crosswalk, sidewalk, culvert, or bridge, * * * or from the negligence of the city or town authorities in respect to any such street, alley, crosswalk, sidewalk, culvert, or bridge shall, within thirty days after the happening of such injury or damage, be presented to the city council * * * in writing, signed by the claimant or by some person by claimant authorized to sign the same, and properly verified, stating the particular time at which the injury happened, and designating and describing the particular place in which it occurred, and also particularly describing the cause and circumstances 'of the said injury or damages, * * * and als'o stating the nature and probable extent of such injury, and the amount o£ damages claimed on account of the same; * * * and no action shall be maintained against any city or town for damages, or injury to person or property, unless it appears that the, claim for which the action was brought was presented as aforesaid to the city council * * * and that such council * * * did not within ninety days thereafter audit and allow the same.” (Italics ours.)
The succeeding section provides that unless the claim is presented to the city council “in the manner and within the time in section 816 specified” it shall be barred.
We call special attention to the parts that we have italicized, which, as will appear hereinafter, are very material, for the reason that certain decisions of this court are relied upon. At the time those decisions were rendered, however, the words in italics were not in the statute, but were thereafter inserted by amendment.
The particular question on this appeal respecting the statute arose as follows:
The plaintiff, within the time provided by statute, filed a claim duly verified, in words as follows:
*407 “Salt Lake City, a Municipal Corporation, to Emma S. Berger, Dr.
“Jan. 15, 1917.
“To broken left forearm suffered by the claimant by reason of slipping and falling on sidewalk in front of 167 North Main street, of which a Mr. Jensen was the occupant, Tuttle Bros, agents, and Mr. W. E. Smelles. Such falling was caused by the dangerous condition of such sidewalk by reason of four inches of ice and frozen snow being allowed to accumulate thereon, and to remain on same for several weeks last past, contrary to the provisions of the city ordinance in regard to the removal of snow from sidewalks. Both the radius and ulna bones being broken completely off, and there being the possibility of it being six weeks at least before the claimant will be able to use the arm at all. The accident happened about three or four o’clock in the afternoon of January 15, 1917. $1,000.00.”
It will be observed that there is no claim or intimation that the result or effects of the injury would be permanent, and the amount claimed is limited to $1,000. Notwithstanding that fact, however, the court permitted the plaintiff to recover upon the theory that the effects of the injury were permanent, and also permitted her to claim the sum of $5,000 in her complaint, and allowed a recovery and entered judgment for a sum in excess of $1,000.
Appellant’s counsel, with much vigor, argue that under our statute the injured claimant is limited in her recovery to the amount specified in her claim. Upon the other hand, plaintiff’s counsel contend that such is not the law, and in support of their contention cite Mackay v. Salt Lake City, 29 Utah, 247, 81 Pac. 81, 4 Ann. Cas. 824, and Connor v. Salt Lake City, 28 Utah, 248, 78 Pac. 479.
While it is true that in the Mackay Case it was held that the plaintiff was not limited in his recovery to the amount stated in his claim, yet it is also true that at the time the injury arose in that ease the statute did not require the claimant to state the “amount of damages claimed.” After that case was decided, however, the statute was amended so as to require the claimant to state the amount of- damages that he claimed. The changes in the statute since the Mackay Case was decided are indicated by the italicized words. It would, therefore, be folly to contend that by the amendments
While it is true that in the Sweet Case the question arose in a somewhat different form, yet the principle was the same there as it is here. In the Sweet Case the decision in the Mackay Case is referred to, and the changes in the statute are pointed out.
The decisions of this court (Sweet v. Salt Lake City, supra, and Dahl v. Salt Lake City, 45 Utah, 544, 147 Pac. 622) are in harmony with the overwhelming weight of authority, which is to the effect that it is within the power of the Legislature to impose such conditions upon the right to sue cities and towns, which are merely arms of the state government, as in its judgment may seem wise and proper,
In determining the effect of a particular statute upon this subject it is of the utmost importance to keep in mind its terms and provisions. An examination of the cases will disclose that the terms of the statutes in the different states vary to a considerable extent, which fact is frequently overlooked by counsel in citing cases in support of their respective views. In many statutes it is not made essential to state the amount of damages claimed, and hence a failure to do so is not controlling. Under such statutes, if the amount be stated judgment may, nevertheless, be obtained in excess of the amount stated. There are statutes, however, like ours, in which it is provided that the amount of damages claimed shall be staté'd, and, where such is the case, the courts have held that the recovery must be limited to the amount stated, unless for good and sufficient cause an amendment to the
“Sucli amount must be stated, and the payment thereof refused, before an action can be maintained. If, after an action has been commenced, something occurs which the plaintiff believes entitles him to a larger amount, such claim must be presented to the board.
The Supreme Court of Iowa, in two later decisions, proved and followed the decision in the case just referred to, namely, Van Camp v. City of Keokuk, 130 Iowa, 716, 107 N. W. 933, and Buchmeier v. City of Davenport, 138 Iowa, 623, 116 N. W. 695. In a recent case from Montana (Berry v. City of Helena [Mont.] 182 Pac. 117) the Supreme Court held that the provisions of the statute must be complied with.
The court said: “ It is not an answer to say that the city officials obtained correct information from other sources and were not misled. The only right which plaintiff can assert against the city is the right granted by statute. Compliance with the law on her part is a necessary prerequisite on her part to institute this action. * * * ” To the same effect are Walters v. City of Ottawa, 240 Ill. 259, 88 N. E. 651; MacMullen v. City of Middletown, 187 N. Y. 37, 79 N. E. 863, 11 L. R. A. (N. S.) 391; and Ridgeway v. City of Escanaba, 154 Mich. 68, 117 N. W. 550. Numerous other cases could be cited to the same effect, but it is unnecessary to do so.
As pointed out, the plaintiff in this ease stated the amount claimed by her, but after doing so was permitted, without
We are of the opinion that, as sugested in the ease of Sweet v. Salt Lake City, supra, namely that in case the claimant, within the thirty days given him by the statute, is unable, or, in the exercise of reasonable diligence, does not, discover and know, and hence cannot state, all of the consequences of the injury, and that he thereafter discovers that the natural and proximate consequences of the injuries stated in his claim have developed to be more serious than was known at the time he filed the same, he
There is nothing to the contrary in any of the cases, not even in those from Iowa. Counsel for plaintiff have, however, cited some cases which they contend permit a recovery in excess of the amount claimed without showing any cause or excuse therefor. Among others they cite five decisions from the Supreme Court of "Washington. Counsel have evidently overlooked the fact that after all of those cases were decided the Washington statute was amended, and that the Supreme Court of Washington thereafter followed the decisions we have hereinbefore referred to.
We think the rule herein laid down is practical, and if properly applied will reflect justice in all cases without in any way impairing either the purpose or the spirit of the statute.
We are of the opinion, therefore, that in view of the statement contained in the claim as filed, and in the absence of the suggested averments in the complaint, the court erred in permitting plaintiff to recover an amount in excess of the amount stated in the claim as filed.
It is next contended that the court erred in overruling appellant’s motion for a nonsuit; that the court erred in overruling appellant’s motion for a new trial; and that the evidence, for various reasons stated, does not sustain the verdict
The evidence on the part of the plaintiff is to the effect that on Christmas Bay preceding the accident there was an unusually heavy fall of snow in Salt Lake City; that much snow had fallen during the month of December, 1916, and that some more fell in January, 1917, before the accident; that the city had attempted to clear the sidewalks, including the one in question, with a snowplow; that the pedestrians had, however, tramped down the snow, and the snowplow did not clear the walks; that the accident occurred in front of a vacant house, at which place snow to a considerable depth was left on the sidewalk for the reason that the snow had been tramped down and the snowplow had passed over it; that the surface of the snow at the point in question was rough and uneven. One of the plaintiff’s witnesses testified that she had passed over the place many times; that the elevations and depressions were entirely due to the “footprints” of the pedestrians; that it was a very cold winter, with “unusual snowstorms”; that people had walked over the entire width of the sidewalk, and that it was rough from “footprints.” The plaintiff, quoting from the bill of exceptions, testified that the surface was “uneven and slippery; and as I was going over further toward the middle of the sidewalk I fell”; that there were “large and small footprints, and seemed to have slanted sidewise, and the larger ones — -they were between two and four inches deep.” On cross-examination she said, “'Well, I looked at the sidewalk, and it was all covered with snow and rough with footprints, and when the snow had been thawed the people had tramped it — made it very rough.” She further testified, in answer to a certain question put to her by appellant’s counsel: “No, it wasn’t exactly a ridge; it was the slant on which my foot slipped; it wasn’t what you might call a ridge; it was a little slanting, and with' it being frozen ice and snow it was very difficult to walk over. ’ ’ There is much more evidence to the same effect.
On the part of the defendant (and we only refer to these facts because they are not disputed or contradicted in any
Upon substantially the foregoing facts the court submitted the ease to the jury upon the usual instructions respecting the - duty of cities to keep their streets and sidewalks in a reasonably safe condition, etc.
The question to be determined is, Do the ordinary rules of law respecting the duty of cities and towns to exercise ordinary care and diligence to maintain the streets and sidewalks in a reasonably safe condition and free from dangerous obstructions apply to the natural and ordinary accumulations of snow and ice?
The question, in the form that it is presented by this record, is an open one in this jurisdiction. It may be conceded that there are some decisions of courts of last resort where it was held that facts like those in this case respecting the condition of the sidewalk, independently of other considera
Harrington v. City of Buffalo, 121 N. Y. 147, is, in many respects, a parallel case with the one at bar. Recovery was, however, disallowedjts a matter of law. In Hatch v. City of Elmira, 142 App. Div. 174, 126 N. Y. Supp. 863, the surface of the sidewalk was described as “humpy” and “lumpy,” and that it was uneven, rough and slippery, and made so
In Dapper v. City of Milwaukee, 107 Wis. 88, 82 N. W. 725, the decision is -correctly reflected in the first headnote, wherein it is said:
“In the absence of structural defects which combine with the action of the elements in causing accumulations of ice and snow on a sidewalk, the condition of a sidewalk crossing an alley, which has become uneven by falling snow and the melting and freezing of the same while used by persons and teams, does not constitute an actionable defect.”
In the opinion it appears that the sidewalk was substantially in the same condition as in the case at bar. In that case it is also pointed out under what circumstances and conditions cities may become liable for dangerous obstructions on sidewalks which are due to the accumulations of ice and snow.
In Norwalk v. Tuttle, 73 Ohio St. 242, 76 N. E. 617, the Supreme Court of Ohio gave the matter very careful consideration. It is there held that a city is not liable for the natural accumulations of ice and snow upon the sidewalks, but in case such accumulations are made unsafe or dangerous by reason of ice or snow which is placed there, or caused to be there, by the acts of the city, it then is responsible for such conditions. In the course of the opinion it is said:
“Recurrence to a very elementary proposition seems necessary. The proposition is that in cases of this character there is no liability where there has been no default in duty. No default of the municipality appears in cases of this character when the peril is not due to defective construction or to any other act of the city contributing to or causing the dangerous condition of the street, hut where that condition is due solely to the action of the elements. In a climate where the winter brings frequently recurring storms of snow and rain and sudden and extreme changes in temperature, these dangerous conditions appear with a frequency and suddenness which defy prevention, and, usually, correction. Ordinarily they appear before correction would be practicable by any provision which the city might reasonably be expected to make. It is within common observation that without the presence of snow or rain, from the mere alternations of heat and cold operating*416 upon the frozen earth beneath the walk, there result dangerous conditions of pavements which it would not be possible to prevent or correct. To hold that a liability results from these actions of the elements would be the affirmance of a duty which it would often be impossible, and ordinarily impracticable, for a city to perform.”
See, also, Chase v. City of Cleveland, 44 Ohio St. 505, 9 N. E. 225, 58 Am. Rep. 843, where the question is carefully considered, and where it is held that the cities cannot be held liable for injuries caused by natural accumulations of snow and ice.
The Supreme Court of Missouri has also given the question careful attention. In Reedy v. St. Louis Brewing Ass’n, 161 Mo. 536, 61 S. W. 862, 53 L. R. A. 805, it is said:
“Running through all the cases to which our attention has been called on this subject, we find the general proposition that ice or snow upon a sidewalk or in a street is not to be classed with dangerous obstructions, such as a city is required to remove. It would be more accurate to say that it is a dangerous obstruction, but that it is excepted from the category of obstructions for which the city is liable upon the ground of the impracticability of the city’s removing it. There are, for example, in this city many hundreds of miles of sidewalks upon which snow falls and ice forms when the weather suits, and immediately upon its fall the snow is beaten down by the feet of thousands walking over it. To some extent the sidewalks and streets may be and are cleared of such obstruction, but to remove it entirely or to a degree that would render it not dangerous is impracticable, and therefore not embraced in the law’s reasonable requirements. There is another reason for making snow or ice, on the sidewalks and in the streets, an exception to that dangerous condition for which a city is liable; that is, when '’that condition exists generally, it is obvious and every one is on his guard. Any pedestrian on the sidewalk .or traveler in the street is warned by all his surroundings that ice and snow abound, and consequently danger of slipping and falling is to be apprehended at every step. The law is reasonable in this as in all things." '
That case is approved and followed in the later case of Vonkey v. St. Louis, 219 Mo. 37, 117 S. W. 733.
Substantially the same rule is laid down by the court in Albritton v. Kansas City, 192 Mo. App. 574, 188 S. W. 239. In that case it is pointed out that the ordinary rules apply
In Wilson v. City of Idaho Falls, 17 Idaho, 425, 105 Pac. 1057, the rule adopted by the Supreme Court of Idaho is stated in the first headnote as follows:
“In an action against a city for injuries alleged to have been caused by a slippery sidewalk occasioned by the melting and freezing of snow, the travel over the sidewalk and the making and freezing of the ice and snow thereon having left the sidewalk in a rough and slippery condition, held that the evidence is not sufficient to show the negligence of the city or its liability.”
In City of Aurora v. Park, 12 Ill. App. 122, substantially the same doctrine is laid down.
Nothing could be accomplished by further quoting from the decided cases. It is, however, important to keep in mind the fact that in some states there are statutes requiring cities and towns to'remove snow and ice from sidewalks. In some states such provisions are incorporated into the city charters. In most of these states, however, the statutes require that actual notice for a specified time be given to the city of the condition of the sidewalk before liability attaches. See Hatch v. City of Elmira, supra. Such is now the law in the state of Rhode Island, having been changed after the Supreme Court in that state had applied the ordinary rule. Such a law is just, fair, and rational. In the case at bar the city was found negligent for the existence of a condition which the undisputed evidence showed was practically impossible to avoid. If the cities and towns of this mountain country are to be charged with being negligent for not removing the natural accumulations of
Negligence, in the eye of the law, consists in doing or omitting to do any act which an ordinarily prudent and careful person under the same circumstances would do or omit to do. The law does not condemn an act or omission
In view of what has been said, how can it successfully be contended that the officials of Salt Lake City were culpably negligent (and that the taxpayers should respond in damages) for not accomplishing what it was unreasonable to expect? In this connection it may not be out of place to observe that it is reasonably clear that our statute under which cities and towns are required to exercise ordinary care to maintain the streets and sidewalks in a reasonably safe condition, and under which, in case a claim is filed as required by the statute, the cities and towns may be held liable for negligently failing to maintain the greets and sidewalks in such condition, was not intended to apply to the ordinary and natural accumulations of ice and snow. Under the statute the claim, together with the statements rer uired therein, may be filed at any time before the expira-ion of thirty days after the injury which is complained of. This implies that the condition in the street or sidewalk of which complaint is made is not entirely ephemeral, and may be seen and examined into even after the thirty days have expired. This is not possible with the natural accumulations of snow and ice. The condition of the snow and ice, as all know, may, and most always does, change from day to day, and certainly changes in a very few days. Where the accident occurs, however, by reason of the alleged accumulations of snow and ice, and a claim is filed at or near the end of thirty days, the condition that existed at the time of the .injury, and which was the alleged cause thereof, would have disappeared, and it would be useless for any city officer to make an examination of the place to ascertain the condition of the sidewalk. The statute, therefore, was not intended to meet such a condition. For that reason the statutes which require actual notice to the city, and provide that unless the condition is remedied within the time allowed by the statute the city is liable, are fair, just, and reasonable, and are adapted to the actual conditions which they are intended to meet.
While there are numerous other errors assigned and argued, in view of the conclusions reached those assignments are not material.
From what has been said it follows that the judgment should be, and it accordingly is, reversed, with costs.
