155 Ky. 662 | Ky. Ct. App. | 1913
Opinion op the Court by
Affirming.
The appellant, Mary Varney, while walking westwardly on the north side of Wallace avenue about one hundred feet east of Madison avenue in the city of Covington, slipped and fell on ice which had gathered upon the pavement and was concealed by a slight fall of snow. The fall caused the breaking of appellant’s hip, which injury, as she is sixty-seven years of age, will, in all probability, make her a cripple for life. The injury was sustained January 11, 1912, and, on the 24th of June, 1912, she instituted suit against the city of Covington and Adam Grossman, the owner of a building standing near the place of the accident, to recover damages for the injuries sustained. Being required by the court to elect whether she would prosecute the action as to the city or Grossman, appellant elected to proceed against the city alone, and the action was thereupon dismissed as to Grossman. The city answered traversing the averments of the petition and pleading contributory negligence on the part of the appellant. The trial resulted in a verdict for the city, the jury having so found in obedience to a peremptory instruction given by the court, at the conclusion of appellant’s evidence. The latter was refused a new trial, hence this appeal.
A reversal of the judgment entered upon the verdict is asked upon the single ground that the trial court erred in granting the peremptory instruction; it being the appellant’s contention that the proof introduced in her behalf, was sufficient to authorize the submission of the case to the jury.
Appellant complains that there was, at the place of the accident, a slight slope in the sidewalk in the direction of the street and that the water, which produced the.
In Town of Bellevue v. England, 118 S. W., 994, the plaintiff was allowed to recover for an injury caused by a fall on the ice, but this was because the street was rendered unsafe for travel on account of its board sidewalk and gullies that had been allowed to form in the street and sidewalk; and, in addition, because a watermain in the street had sprung a leak some months before, which had permitted the escaping water to run down the street into the gullies, forming in one of them, the ice upon which plaintiff fell; the dangerous condition of the sidewalk and street having been known to the city authorities for several months. But no such condition as there existed, is presented by the record in this case, for here we find it manifest from the evidence that there was no defect in the sidewalk or street, and that the appellant’s injuries were due merely to the slipperiness of the ice, which made the accident one against which the city could not, by ordinary care, have guarded. The case before us is more nearly akin to that of Jeagar, et al. v. City of Newport, 155 Ky., 110, in which we approved the ruling of the trial court in directing a nonsuit upon the plaintiff’s evidence. The opinion states the doctrine applicable to the instant case in the following language:
“While, due to the operation of the statutes there in force, municipalities in the New England States are*666 held to a stricter degree of liability, the decided weight of authority elsewhere, as well as the tendency of the more recent decisions, is to hold that a city is not ordinarily liable for mere slipperiness of its sidewalks, occasioned by snow and ice. Where, however, the sidewalk itself is defective or the snow or ice amounts to an obstruction, or its natural condition has been changed by artificial means, liability may attach, or where it is customary to treat the removal of snow and íce as a regular part of highway management, a failure to do so may become wrongful or negligent.”
As it was not made to appear by the proof that the injury sustained by the appellant was the result of any defect in the construction of the sidewalk or the changed natural condition of the ice by artificial means, or that the city had undertaken the duty of removing the snow and ice from its sidewalks, there is no ground for our holding that the trial court erred in directing a verdict in favor of the appellee.
Wherefore, the judgment is affirmed.