District of Columbia v. Frazer

21 App. D.C. 154 | D.C. Cir. | 1903

Mr. Justice Shepard

delivered the opinion of the Court:

This is an appeal from a judgment rendered against the District of Columbia in favor of Anne E. W. Erazer in an action for damages on account of a fall received through the defective condition of a sidewalk.

Only two questions are presented by the record. These are: 1. Whether the action was barred by limitation; 2. Was there sufficient evidence to warrant the submission of the question of negligence to the jury.

1. The first of these questions turns upon the point whether the amended declaration, filed more than three years after the cause of action accrued, set up such a different ground of action as to open the case to the plea of limitation. Plaintiff was hurt January 27, 1897.

The original declaration, filed August 18, 1898, joined one J. W. Preston as a codefendant. The charge against him was, substantially, that he occupied the premises abutting the sidewalk where plaintiff, without negligence on her part, fell upon the accumulated ice; and that it was his duty, under the law, to strew said sidewalk with sand, ashes, sawdust, or the like, to prevent danger to pedestrians; and that he had neglected to perform the same. As to the District of Columbia, it was charged to be its legal duty to keep its sidewalks free from obstruction and danger to pedestrians, as well also as to cause the same, when covered with ice, to be strewed with sand or the like, in case the abutting occupant shall have failed to do so. On account of the failure of duty and negligence of defendants, respectively, damages were asked of each.

The case was subsequently discontinued as to Preston, and an amended declaration was filed March 21, 1902. This amendment omitted all mention of the duty in respect of strewing sand, etc., upon the sidewalks, and, repeating the allegation of the duty of the District to keep its sidewalks in good repair, free from dangerous obstructions, etc., charged that for some time prior to the accident the sidewalk, at the place thereof, had become defective and dangerous. It further charged that defendant had permitted large quantities of ice to accumulate and remain on the sidewalk at the said place, which rendered it unsafe and caused the fall of plaintiff.

Where, as in this case, there has been a substitution of the original declaration by an amendment, the test is whether the cause of action remains the same in substance, notwithstanding differences of specification. Howard v. Railway Co. 3 11 App. D. C. 300, 336; T. & P. Ry. co. v. Cox, 145 U. S. 593, 604.

Applying this test, we are of opinion that there was no error in overruling the plea of limitation. The foundation of the action, in both pleadings, is the negligence of the defendant in the performance of its duty to keep its sidewalks in a safe condition.

2. The evidence, on behalf of the plaintiff, tended to show the following facts: The premises abutting the street, at the place where plaintiff received her fall, had been occupied for several years by a building used as a barn and stable wherein wagons and horses were kept for daily use. On account of the grade of the parking and sidewalk, the water regularly used in washing wagons in said barn was accustomed to flow across both to the gutter. This flow kept the sidewalk wet for a space of some feet and some of the water remained, at times, in depressions therein.

This condition existed throughout the winters of 1895-6 and 1896-7, during which time, in freezing weather, ice would accumulate on the space aforesaid in such manner as to render walking thereon unsafe.

■ During severe cold, on January 27,1897, a light snow fell, and was falling as plaintiff walked along the sidewalk in the exercise of ordinary care. In crossing the space before described, which was then and there covered with ice an inch or more thick in places, plaintiff slipped, fell upon the sidewalk and sustained painful injuries.

This evidence was submitted to the jury with a charge that correctly defined the law in respect of constructive notice to a municipal corporation of obstructions in its sidewalks.

Tbe jury were, also, expressly charged that a mere slippery condition of the sidewalk, which might happen from frost or from the freezing of rain or melted snow, would not constitute an actionable obstruction; hut that the plaintiff could not recover unless they believed from the evidence that the ice had been solely caused by the flow of water from the stable.

The question for our determination, then, under the evidence and the charge of the court, resolves itself into this:

Is a municipal corporation legally responsible for injuries sustained by one who, while exercising ordinary care, slips upon a bed of ice, covering a part of a sidewalk, which was not the result of frost or the casual freezing of rain or melted snow, but of a flow of water from abutting premises, that in freezing weather regularly produced the- same to an extent that rendered it a dangerous obstruction to travel % Provided, always, that these conditions had existed for such a length of time that the municipal officers would necessarily have discovered them by the exercise of ordinary care under all the circumstances.

We have no doubt of this responsibility, for we can perceive no distinction, in principle, between the nature of this obstruction, under the limitations stated, and others, for the negligent creation or sufferance of which liability has been universally recognized. Baltimore v. Marriott, 9 Md. 160, 167. Nor have we been able to perceive any substantial ground for a distinction between a smooth and a corrugated bed of ice, as affecting the question of responsibility, that has been recognized in some of the decided cases. Our judgment approves the reasoning of a line of well-considered cases, some of which we cite, that deny the reasonableness of any such distinction. Magaha v. City of Hagerstown, 51 Atl. Rep. 832 (Maryland Court of Appeals, April 1, 1902) ; Cloughessey v. City of Waterburg, 51 Conn. 405; Decker v. Scranton, 151 Pa. St. 241.

3. In conclusion, we think it proper to call attention to the failure to observe tbe requirements of Section 4 of Rule Y in the preparation of the bill of exceptions for the review of tbe judgment in this ease. It consists, apparently, of a substantial transcript of tbe stenograpbic report of tbe proceedings on tbe trial. The latitude afforded by tbe rule in cases where defect of proof is made a ground of error has been far exceeded. Instead of presenting tbe relevant portions of tbe evidence in narrative form, tbe statement is made up almost entirely in tbe shape of questions and answers, many of wbicb could bave been omitted as immaterial.

Tbis recital of questions and answers is interspersed with brief statements of tbe arguments made in tbe course of objections, together with occasional colloquies between counsel and court arising on those objections.

Tbe bill of exceptions, not having been objected to, has been considered. But we take tbis occasion to say that tbe court has tbe power, of its own motion, to refuse to consider a bill of exceptions that shall bave been prepared in disregard of its rules.

We bave found no error in tbe proceedings on tbe trial and tbe judgment will, therefore, be affirmed. It is so ordered.

Affirmed.