Allen v. Cook , 21 R.I. 525 ( 1900 )

This is an action of trespass on the case to recover from the city of Woonsocket damages which the plaintiff claims to have sustained by the neglect of that city to keep one of its sidewalks safe and convenient for travel.

The defect complained of is a gutter across the sidewalk on Main street, near the St. James Hotel. This gutter, as the testimony shows, is twenty inches wide, and three inches deep in the middle. It was made in July, 1892, in the concrete at the time the sidewalk was laid, and was designed to carry away water from the adjacent land; but at the time of the accident to the plaintiff the bottom of the gutter was not a true grade, and the concrete was broken also on its side, so that the water which had accumulated did not all run off after rains and the washing of the hotel windows, but some of it was held back and would stand in pools varying in size from that of a saucer to that of a platter. On the evening of February 2, 1898, at about eight o'clock, the plaintiff, while passing along the sidewalk, slipped on the ice in the gutter and fell to the sidewalk, breaking her wrist and injuring herself otherwise. The case was tried in the Common Pleas Division and resulted in a verdict for the plaintiff, and is now before us on the defendant's petition for a new trial for error in rulings, and also on the ground that the verdict is against the evidence.

We find no error in the rulings excepted to, but a majority of the court is of the opinion that a new trial should be granted on the ground that the verdict is not supported by the evidence.

A city is not liable for injury to person or property caused by snow or ice obstructing any or any part of its highways, unless notice in writing of the existence of the particular obstruction shall have been given to the surveyor of highways within whose district such obstruction exists at least twenty-four hours before the injury was caused, and the city or such surveyor shall not thereupon within that time have commenced the removal of such obstruction or caused any sidewalk which may have been obstructed by ice to be rendered passable by spreading ashes or other like substance thereon. Gen. Laws R.I. cap. 72, § 13. Winsor v. Tripp,12 R.I. 454. The mere presence of ice, therefore, on which the plaintiff slipped, in the absence of notice in accordance with the statute, is not enough to render the city liable. It is necessary for the plaintiff, in order to recover, to adduce evidence, as was done in Hampson v. Taylor, 15 R.I. 83, that the accident would not have occurred but for the gutter; or, in other words, that the gutter as it existed at the time of the accident constituted such a defect as would have rendered the city liable, in case the accident had happened by reason of it, in the absence of the ice. The record contains no evidence as to the dangerous character of the gutter apart from the presence of the ice.

In Winsor v. Tripp, 12 R.I. 454, it was held that the provisions of Gen. Stat. R.I. cap. 60, § 15, of which Gen. Laws R.I. cap. 72, § 13, is a re-enactment, applied to obstructions by snow and ice occasioned by artificial as well as natural causes; but the query was suggested whether the exemption of the statute would apply in case the obstruction causing the injury was occasioned by the act of the city. If the plaintiff claims that the present case is not within the exemption because the presence of the ice was due to the negligence of the city in maintaining the gutter in its defective condition at the time of the accident, and the artificial accumulation of water in the gutter, it is incumbent on her to show that the origin of the ice was due to this cause. This the testimony does not show, but it was left to be inferred by the jury from the presence of the ice. This might, perhaps, have been a fair inference but for the fact shown by the testimony that there had been during the twenty-four hours preceding the accident a very heavy snow-storm, and the ice on which the plaintiff slipped may have been caused by the treading down of the snow by travel over the sidewalk. One of the witnesses for the plaintiff testified that the ice on which the plaintiff slipped was "ridgy," and another that it was "rough, ridgy," which would indicate that it was due to the latter cause rather than to the former.

New trial granted, and case remitted to the Common Pleas Division for further proceedings.