This аction was brought by respondent against the appellant to recover damages for an injury sustained by his •child, a boy aged 18 months, at the time of the accident, near thе Western Union Telegraph Office, in Salt Lake -City, on the east side of Main street. Ice had been allowed to accumulate on the sidewalk, caused by the freezing оf water which came down a conductor and a waste pipe leading from a sink, and was allowed to flow out and over the sidewalk. The conductor had been thеre a long time, and the water flowing from thence would freeze and thaw as the weather was cold or warm. The conductor was -about four inches in diameter, made of tin, and was used, to carry off the rain or snow as it melted from the roof •of the building adjoining the walk. The sidewalk at this place was also sloping or slanting to the south, and also towards the curb, making it all. the more dangerous and slippery when the water froze. At the time of the acci•■dent, the ice covered a space of two or threе feet wide across the sidewalk diagonally towards the curb, and was from one to fifteen inches thick, measuring from the curb up to the mouth of the' conductor. At the time of the ■ accident, a slight snow was and had been falling for several hours, which in a large measure covered and obscured the ice. On the 7th day of January, 1892, in the afternoon, аbout 5 o’clock, respondent’s wife was walking along the sidewalk at a usual gait, carrying the child in her .arms, and, when she reached this place covered with ice, slipped and fell as she walked upon it. In falling, the .child was thrown with considerable force to the walk,
At the conclusion of the testimony for the respondent,, appellant moved the court for a nonsuit, and the motion was denied, and appellant rested the case without introducing or offering any evidence. After argument by counsel, the court charged the jury, and they retired to-consider of their verdict. Later they returned into court, for further instruction, and the court, in open court, and in the presence of counsel for the respective parties, further charged the jury. The whole charge, as given in open court, was, at the request of the jury, sent to their room in writing. The jury rendered a verdict in favor of' the respondent. Appellant's motion for a new trial was denied, and this appeal is prosecuted from the order-refusing a new trial, and from the judgment.
The errors assigned and relied on are: First. The. evidence was insufficient to sustain the verdict or any verdict for respondent, and appеllant's motion for a non-suit should have been granted. Second. The court erred in refusing to give the requests of appellant. Third. The court erred in permitting its written charges to be-sent to thе jury.
That the ice in question was not the result of snow or-rain falling or dripping from eaves, and not from any natural cause, but was caused from water discharged on the sidewalk by mеans of a conductor used to carry water-from the roof of the building, and, too, by a defective-one, and from a waste pipe, is clear from the evidence.. The ice was the result of an artificial, and not a natural, cause. There is no evidence at all to sustain appellant's-contention that the ice was the result of the prevailing-Aveather, and not one witness in the case so testified. 'Where a corporation permits the discharge of water from adjoining houses to be оbstructed, or permits the water to
The question of notice to appellant was one of fact for the jury to determine, and not a question for the court. Elliott, Roads & S. p. 461; Dill. Mun. Corp. § 1026. In Wisсonsin, where a defect in a sidewalk existed one day,, and in Massachusetts, where a defect in a highway existed 13 hours, and in Connecticut, a few hours, from frozen water, it was held that it was for the jury to determine-whether that constituted sufficient notice. Howe v. City of Lowell,
The charge of the court correctly stated the law in the premises, and all the requests of appellant were substantially given in the charge of the court. Appellant, however, is not in a position to avail itself of any error in the •charge of the court, should there be any, for it has not properly made and saved its exceptions. The only exceptions taken by appellant are: “In this case we desire to .have an exception tо each paragraph of the charge of the •court; also save our exceptions to the refusal of the court to give the instructions asked for by the defеndant/'’ This court has held that such exceptions are too .general, both ¡for an exception to the charge as given and for the .requests refused. Marks v. Tompkins, 7 Utah, 421,
The court did not err in permitting the jury to take to iheir room the charge of the court after it was reduсed to writing. All the charge was given in open court, and in presence of counsel for both parties. That it is proper to allow written instructions to go to the jury room, sеe People v. Cummings,
Differences of climate and locality are to be considered in determining the liability of municipalities for their failure to exercise care in removing ice and snow from their walks. Bach case must be considered with reference to ■the climate of the place. In Minnesota, where snow and ice exist almost constantly through the winter season, to require municipalities to keep their walks absolutely free •of ice and snow would he highly unreasonable. But in other lоcalities and in a warmer climate, like Utah,, where .snow and ice, although not unusual, are by no means continuous, to require the municipalities to keep their walks ffree of ice and snow, especially in particular localities, is by no means unreasonable. Jones, Neg. Mun. Corp. § 100.
Upon a full examination of the case and authorities •cited, we are of the opinion that the judgment should be .affirmed; and it is so ordered.