Hansen v. City of Minneapolis

113 N.W.2d 508, 261 Minn. 568, 1962 Minn. LEXIS 673

• Court: Supreme Court of Minnesota
• Decided: February 2, 1962
• Docket: 38,139
• Status: Published

Opinions

Magney, Commissioner.

On February 8, 1955, plaintiff, Ada Hansen, was walking westerly on the sidewalk on the north side of Fifth Street South in the city of Minneapolis. As she was about to pass the office building of defendant Lumber Exchange Corporation she fell and was injured. She claims that defendant was negligent in permitting an artificial accumulation of ice to form on the sidewalk adjacent to its building. Defendant denies that it was negligent and claims that the accident was caused by plaintiff’s contributory negligence and that plaintiff assumed the risk and hazard of injury. Verdict was for plaintiff. Defendant appeals from the order of the court denying its motion for judgment notwithstanding the verdict.

An alleyway, part of which had been dedicated as a public sidewalk, ran between defendant’s building and the one to the east of it. The property line was in the center of the alley. A portion of defendant’s building extended onto the sidewalk. A roof area of about 120 square feet above this extension drained to a downspout at one comer of it. This downspout had rusted and rotted where it was connected with the gutter on the roof, leaving open spaces between the downspout and the gutter. It was rusted and riddled with holes. Fifty percent of the roof water would escape to the ground below. Snow on the roof would melt, partly because of heat from the building itself, causing water to run off. In freezing weather, the water would create a lump of ice under the downspout on defendant’s side of the alley near the building and thus on the sidewalk.

At about 10 minutes before 1 o’clock, that is, during the noon hour, plaintiff, age 39, was walking westerly on the sidewalk in question. There were people walking ahead of her but not so close that she could touch them. Several were walking on the sidewalk to her left. As she approached the alleyway, she noticed that the surface of the alleyway was different from the rest of the sidewalk. There were bumps and ridges extending out into the alley. Pedestrians walking in front of her crossed over this area and had no difficulty in doing so. Neither did she until she fell and was injured. While still sitting on the sidewalk she noticed the downspout, with water dripping from its end and other places. The surface of the walk was wet. She also noticed for the first time a bump of ice about 4 inches high, caused by this dripping water. She had fallen on this bump of ice. Prior to her fall she had not noticed it. As she .started across the alley she noticed that it was not smooth but had ridges and bumps. It was smooth near the curb; other people were walking there. She said that she could not move over and push them aside. As she was walking along she did not look down at her feet but was concerned with what was ahead of her. She said that she had walked over that sort of surface before and had experienced no trouble. She said that she realized that anyone walking in an icy area was in danger of falling but at that time she did not think of falling. She did not testify that she realized the danger of crossing over this particular patch of ice, and, as stated, she did not see the bump on which she fell.

The negligence of defendant is clear. By maintaining a defective downspout, it permitted the creation of a dangerous artificial accumulation of ice on a heavily traveled sidewalk. Defendant does not question its liability as found by the jury. Neither does it question the court’s ruling on evidence or its charge to the jury. Its complaint is that the court should have granted judgment notwithstanding the verdict on the ground that plaintiff assumed the risk and was guilty of contributory negligence as a matter of law.

Defendant relies chiefly on the recent case of Geis v. Hodgman, 255 Minn. 1, 95 N. W. (2d) 311. In that case plaintiff walked down her employer’s driveway to the mailbox and, when returning from the mailbox, slipped on a patch of smooth ice, fell, and was injured. She knew that the patch of ice was there — had seen it when she went down to the mailbox — and that the driveway had been in the same condition for several days. Her explanation was that she did not know how slippery the ice was — that it was more slippery than she expected. This court was of the opinion that the evidence was so conclusive that plaintiff had assumed the risk that it left nothing for the jury to pass upon and therefore ordered judgment for defendant.

In the Geis case the relationship of master and servant existed, and, as the court said, in such cases the doctrine rests on contract. Here we do not have this relationship and therefore do not have a contract basis. However, in this state the separate defense of assumption of risk exists in non-master-servant cases, although it may become a phase of contributory negligence, as stated in Schrader v. Kriesel, 232 , 45 N. W. (2d) 395. In the Geis case the court said (255 Minn. 12, 95 N. W. [2d] 318):

“* * * It adds only to confusion to attempt to reconcile them [non-master-servant cases] with cases such as we now have before us.”

Assumption of risk involves the comprehension that a peril is to be encountered and a willingness to encounter it. Notice or knowledge and an appreciation of the danger are indispensable to an assumption of risk. Schrader v. Kriesel, supra. A person, to be charged with assumption of risk, must know, understand, and appreciate the risk of being injured. However, in any case involving assumption of the risk, the rule is that the question whether a party has assumed the risk of a given situation usually is for the jury, unless the evidence is conclusive. In such case, it becomes a question of law. Geis v. Hodgman, supra. The question then in this case is whether the evidence on the question of the assumption of the risk is so conclusive that there is nothing for the jury to pass upon.

Here, plaintiff, on a busy noon hour, was walking on a sidewalk. She was not familiar with the icy condition. She had not seen it before. Pedestrians were ahead of her and alongside. She saw the area of rough ice in front of her. People walking ahead of her crossed the rough spot without difficulty. She did not see the bump of ice described previously until after she had fallen. In the Geis case, plaintiff was well acquainted with the slippery patch of ice, and her only excuse was that it was more slippery than she expected it to be. She had seen and.knew the whole situation. Our present case is not one of smooth ice, where one glance would reveal everything. It is a case where plaintiff knew nothing of the 4-inch-high bump which caused her to fall. She did not see this bump. It was not a danger that she was aware of. Other people walking ahead of her were using the sidewalk the same as she was. Under such facts, one cannot say that the evidence is so conclusive that plaintiff assumed the risk as a matter of law. Neither do we think that the evidence established contributory negligence as a matter of law.

Order affirmed.