*1 dollar, eye its and with discharged an employee, ship,” has lines in order engaging in competitive him from endeavoring stop are and conduct Since, its actions my opinion, livelihood. earn his fraudulent, the lower court if capricious, arbitrary clearly dissent. I, therefore, should be reversed. AND
ADA HANSEN v. CITY OF MINNEAPOLIS OTHERS. CORPORATION, APPELLANT. LUMBER EXCHANGE 113 N. W. 508. 38,139. February 1962 No. Mahoney Mahoney, & for appellant. James,
Bruce B. for respondent.
Magney, Commissioner.
On February 1955, plaintiff, Ada Hansen, walking westerly on the sidewalk on the north of Fifth Street South in the city defendant building the office pass As she was about to Minneapolis. claims and was she fell Exchange Corporation Lumber accumulation artificial negligent permitting defendant denies building. Defendant its adjacent sidewalk ice to on the form by plain- was caused *2 the accident that and claims that negligent it was the risk and assumed that plaintiff negligence tiff’s contributory the from appeals Defendant for plaintiff. hazard Verdict was injury. of the notwithstanding judgment the motion for denying order of its verdict. side- public been dedicated which had alleyway, part
An of it. the east of building and the one to walk, ran between defendant’s defend- A of alley. portion the center of the line was in property The about A area of the sidewalk. roof building ant’s extended onto at one comer drained a downspout feet above this extension square it was connected had rusted and rotted where downspout of it. This the down- between roof, leaving open spaces the gutter with on the and riddled with holes. Fifty per- and the It was rusted spout gutter. Snow the ground cent the water the below. on escape of roof would itself, melt, building causing roof would because of heat from the partly weather, water would create a lump water run off. In the freezing the near the alley of ice under on defendant’s downspout building and thus on the sidewalk. hour, o’clock, is, during the noon
At 10 minutes before 1 about the sidewalk in age walking westerly question. on plaintiff, close that she could walking There were ahead of her but not so people the sidewalk her left. As she walking touch Several were on them. she noticed that the surface approached alleyway alleyway, rest the sidewalk. There were was different from the walking in ridges out Pedestrians front of extending into doing so. Neither did she difficulty crossed this area and had no over sitting still on the sidewalk she no- she fell and was While until its end and places. water other dripping ticed the with downspout, time a surface walk was wet. She also noticed for first The caused this water. She high, by dripping 4 inches of ice about bump she had not it. ice. Prior her fall noticed on this had fallen it but that was not smooth she noticed .started across As she curb; other near was smooth It ridges bumps. had them push move over not she could said that She walking at her feet did not look down she walking along As she aside. said that she ahead of her. what was concerned no experienced and had of surface walked over that sort anyone realized that She said that she trouble. falling. think that time did not falling but at she danger
was in danger crossing realized the She did not she testify stated, did not see the on ice, and, as particular patch she fell. maintaining a defective negligence By of defendant clear. artificial accumula- downspout, permitted the creation of tion ice sidewalk. Defendant heavily ques- on traveled does liability jury. tion its as found Neither does ruling court’s on evidence or charge its Its jury. complaint granted the court judgment notwithstanding should have verdict ground assumed the risk and was contribu- guilty of tory negligence as a matter of law.
Defendant relies Hodgman, on the recent case Geis chiefly *3 (2d) Minn. 95 N. W. 311. In that case plaintiff walked down employer’s driveway to mailbox and, when returning from the mailbox, ice, a slipped on patch fell, of smooth injured. and was She knew that the patch of ice was there —had seen it when down she went to the mailbox—and that the had been in driveway the same condition days. for several Her explanation was that she did not know how slippery ice was—that was more slippery than she This expected. court was of the opinion that the evidence was so conclusive that plaintiff had assumed the risk that it left nothing for the jury pass to upon and therefore ordered judgment for defendant.
In the Geis case the relationship of master and and, servant existed, as the said, in such cases the doctrine rests on contract. Here we do not have this relationship and therefore do have a contract basis. However, in this state the separate defense of assumption risk exists in non-master-servant cases, although it may a become phase of contributory negligence, as stated in Schrader Kriesel, 232 (255 said the court case In the Geis N. W. 395. Minn. 318): 12, Minn. [2d]
“* * * them reconcile [non- to attempt confusion to It adds to only before us.” now have such as we with cases master-servant cases] is be peril the comprehension risk involves Assumption of encounter it. Notice or willingness and a encountered to an assumption are danger indispensable of the an appreciation Kriesel, supra. charged assump- A be with person, risk. Schrader v. understand, being the risk of risk, know, and appreciate must tion of risk, the rule However, involving assumption case given has assumed the risk of a whether party is that the question evidence is conclusive. unless the jury, situation is for usually supra. Hodgman, law. Geis v. case, it becomes a question such on is the evidence the question then in this case whether nothing for the conclusive there of the risk so the assumption jury pass upon. hour, a sidewalk. walking on
Here, noon busy plaintiff, She had not seen it before. condition. She was not familiar with saw area of alongside. ahead her and Pedestrians walking ahead her crossed the her. rough People ice in front of ice described She did not see the rough difficulty. without spot the Geis she had fallen. In until after previously ice, and her excuse only slippery patch well acquainted was that it than she it to be. She had seen expected was more slippery Our case is not one of present the whole situation. smooth and.knew ice, glance a case everything. where would reveal It is where plain- one 4-inch-high which caused her fall. nothing tiff knew danger She did not It was not a that she was aware of. bump. using ahead of her were the sidewalk the same Other people facts, say Under such one cannot evidence is so as she was. the risk as a matter law. Neither assumed conclusive *4 think negligence established as contributory evidence that the do we law. a matter of
Order affirmed.
Otis, (dissenting). Justice assumed the risk In my
I dissent. opinion law. received as a matter of dangerous condition both the understanding
Her conven- and the alternative route which confronted her own testi- clearly plaintiffs available to her are established iently mony.
On direct examination Mrs. Hansen testified as follows: “Q. Now, can tell high to, say, us how it was generally highest of this refer point to? Oh,
“A. about four inches. “Q. Now, as you approached did alleyway, you observe surface of that alleyway? “A. Well, I it noticed was There ridges.” different. On plaintiff gave cross-examination the following testimony: there, able what was at up least what was there up alley, particularly in the area where you eventually fell?
“A. I didn’t notice it.
“Q. You didn’t notice anything there? I noticed it when I got up noticed looked than
differently the rest of it.
* * * * * Did ever describe the area as being about three feet in diameter?
“A. Where I fell?
“Q. No. The area of the bumpy ice. Well, big was a size.
“Q. And the balance of the sidewalk smooth, was it not?
“Q. And that was the area over which other people were walk- ing? people were coming and going both ways.
“Q. that able to observe were alley you across the As started you you? area was ahead of bumpy it, “A. but I tried to be careful. I noticed
“Q. ice? you bumpy And realized that was “A. Yes.
“Q. in danger falling tripping? And that were or you it, would, too. thought made I I * * * * * “A. seen others so I “Q. area was some- you bumpy that this appreciate particular was a walk thing that hazard to across? was, Well, as far as that was concerned. alley
“A. the whole “Q. rest But wasn’t the smooth? alley Yes, was, “A. in yes. front
“Q. That means the near street?
“A. curb, Near the I wasn’t on that side. yes.
“Q. So, it, then, T walked take as near the you up edge could see that this ahead of alley you bumpy immediately you?
“A. as came I from the
“Q. seeing it? Nothing prevent you Well,
“A. it’s different from the rest of it. “Q. And if walked over little bit the left you where the street was, there was no area? bumpy No,
“A. but there was people
“Q. There was no area? bumpy
“A. No.
“Q. And that was where the people crossing?
[*] [*] [*] “Q. was, where it but it was somewhere back Exactly before you started across the observed this you bumpy condition about three in diameter? feet No,
“A. I I didn’t notice fell on. “Q. Did July say of 1958 did it? observe it, I didn’t different, noticed the alley I until I fell. that one
*6 notice * * area ahead of bumpy and saw this Now, as you approached it? or left to avoid right did turn you, straight. There right just kept I move over. of me so I couldn’t the far side right on waited, not? You could have could seen-others, it, too. make thought I I could Well, go so [*] [*] [*] [*] [*] “Q. is, could have waited? you I have then I I have. suppose could “Q. high? five inches Now, this was about four or time entered the alley? could see it the prior you I it. high I didn’t see how was until fell on nothing turning right There was from prevent go or left to around it? there was. There was next me couldn’t them over.
push “Q. You also realize that the left of the area where were walking was safer route than the one taking?
“A. Well, there was so many people going down I couldn’t under good, their feet recollect, too but as far as I could it was better.
“Q. You did realize that was safer?
“A. Yes.”
It is apparent that as she approached the alley Mrs. Hansen observed area approximately 3 feet in diameter containing and ridges. She testified that crossing the dangerous section she observed a smooth area of sidewalk near However, the curb. she elected not to cross the the alley by safer route because other people were at that particular moment occupying the space. In leading Minnesota case on the subject, Wright City of Cloud,
St. 54 Minn. 55 N. 819,W. Mr. Justice Mitchell cogently the use of risk in governing assumption rule established the re- and have that decision followed consistently We have sidewalks. 151, 89 N. W. 252 Minn. Village Bovey, it in Rudd v. cited cently awith was confronted case the Wright 689. In hollows, and bult ridges, humps, by icy made hazardous sidewalk testified, she because, as she elected to traverse found that plaintiff, This court idea it was as bad as it was. had no street, have could crossing feet and her retracing steps a mat- the risk as accident, and held that she had assumed avoided the (54 Minn. ter Mitchell stated law. his Mr. Justice opinion 820): might have known “But in while not present path, it is any particular or or hole in this existence location hollow present very testimony knowl- clear her own that she had full sidewalk, edge precise traveling risk slipping incident to over it. The risk was that of only intelli- falling, ordinary and that was one of perfectly patent gence. She her to-travel across it with- simply ability overestimated own defect, falling. going out There was no necessity of easily, inconvenience, she could have and without avoided appreciable street, where the walk was by going across to the other safe. Under such circumstances in the exercise of perfectly care, chances, reasonable but must be to have taken her presumed resulted, having and an having so, done she cannot recover from *7 negligence, different rule as city. contributory No to or assumption risks, called, whichever is be from that would applied case; and, be other if the had exercised half applied any plaintiff care much for her own as she exacts from the for the safety city safety travelers, (Italics the accident would never have occurred.” sup- plied.)
I believe case on all fours with the instant Wright case. Mrs. testimony ridges Hansen her own observed and crossing the was aware an alternative alley, route available her appreciable moving “without inconvenience” by toward the curb a few feet, but she chose a to take chance and was injured because she over- a recent area. In dangerous negotiate ability
estimated her 255, 260, we Moses, Minn. Donald v. thus: defense this application for prerequisites stated the “* ** that the voluntary; be free must assumption left the has the defendant the conduct of assumed where risk is not full alternative; that, plaintiff if no reasonable plaintiff sidewalk, of icy because condition knowledge dangerous of the conditions, he is not deemed to to walk on voluntarily attempts the reasonable unless the defendant proves assume risk of aof safer route of travel.” availability is whether the plaintiff instant case the issue only possible
In the Justice my opinion, of the condition. Mr. full enough when he stated that it is disposed Mitchell have knowledge of the precise part sidewalk where the accident occurred her without necessity knowing of existence and location hole. particular hollow or Although Mrs. Hansen testified that didn’t she notice the particular fall, which caused her she fully rough aware of the condition of the bumpy entire area she was She “tried about to cross. be “thought” careful” and she “could Following make it.” the rea- soning of Mr. Justice Mitchell I do we not believe should a rule adopt is barred only if apprehended the precise irregularity which caused her fall and took consciously its measure before embark- ing upon hazardous undertaking.
I would reverse. Rogosheske, Mr. Justice having been a member of at the time argument submission, took no in the con- sideration or decision of this case.