
    [No. 6609.
    Decided April 8, 1907.]
    Sarah Agnes Bull et al., Appellants, v. The City of Spokane, Respondent.
    
    Municipal Corporations — Negligence — Defective Sidewalk — Question for Jury. In an action against a city to recover for a fall upon a sidewalk, evidence of the plaintiff that she was on the sidewalk when she fell is sufficient to make a question for the jury as to such fact.
    Same — Evidence of ‘Negligence — Sufficiency. In an action to recover for a fall upon an icy sidewalk, there is sufficient evidence of negligence upon the part of the city, where it appears that the snow and ice had been piled up for four weeks on the sidewalk, which was very slippery, and that people had to take the middle of the road to avoid falling, nothing having been done to remove the snow and ice for about four weeks.
    Appeal from a judgment of the superior court for Spokane county, Huneke, J., entered July 3, 1906, dismissing an action for personal injuries sustained by a pedestrian in falling upon a sidewalk, after a trial on the merits before the court and a jury.
    Reversed.
    
      Munter A Jesseph, Munter éf Lonjoy, and S. R. Stern, for appellants.
    
      J. M. Geraghiy and Alex. M. Winston, for respondent.
    
      
      Reported in 89 Pac. 555.
    
   Root, J.

This action was for damages arising from personal injuries sustained by appellant Sarah Agnes Bull in falling upon one of respondent’s sidewalks. From a judgment of dismissal on plaintiffs’ case, this appeal is taken.

It is urged by respondent that the evidence fails to show that said appellant fell upon the sidewalk, and that it also fails to show that the ice and snow, which are .claimed to.have been the cause of the fall, were in such condition as to constitute negligence on the part of the city. The evidence of said appellant herself is that she was upon the sidewalk at the time when she fell. This was sufficient to carry the case to the jüry upon that point. As to the condition of the ice and snow upon the sidewalk, the following extracts of evidence may . be cited: One witness testified:

“Well, it was very icy; about an inch and a half of ice there, I should say; and then there was snow on top of that ice, and it was impossible to go up along there even with rubbers, so we used to take the middle of the road where the wagons had gone over in going to our meals.”

In reference to whether the ice and snow were smooth or otherwise, Mrs. Bull, being asked if there wefe any bumps there, answered: “I didn’t know whether there were any bumps there or not that night. When I fell it seemed all bumps.” “There was nothing but snow and ice on it there, ice and snow all piled up there.” Other, portions of the evidence were as follows:

“Q. Do you know the condition the sidewalk was in, at that place, on the day Mrs. Bull fell? A. Yes, sir. Q. What was that condition? A. Icy, slippery, all snow and ice; we would have to take the middle of the road half the time. Q. How long had that condition existed prior to the day Mrs. Bull was brought in there? A. Oh, for several weeks, during cold weather.....Q. , Had .you, during that time observed any cleaning off of that sidewalk at the place where this accident occurred? A. No, none whatever, because my window faces on that sidewalk. I can see it every day, and there was no cleaning done at all there. A. It was all very slippery, from the little alley way which runs on the north side of Brancy Court clear down to Riverside avenue. It was all in the same condition along there, very slippery with snow and ice. Q. Describe it as accurately as you can, so that the jury may form an idea of the condition it was in at that time? A. Well, it was glassy, icy, I should say; I noticed it because when myself and wife went to dinner, instead of going down the sidewalk, after trying it once or twice, we took the middle of the road, because it was safer. . . . Q. How long had that condition, that you have just described, existed — the condition of the sidewalk? A. I should say two or three or four weeks; I didn’t pay very much attention to it. Q. Had you ever noticed during that time that the sidewalk was cleaned oif at all? A. Yes, sir, I noticed it was always in- the same condition. Q. I asked you if you ever noticed it had been cleaned. A. No, I never noticed that it was cleaned off. Q. Just describe to the jury the exact condition of the sidewalk there at that point, as near as you can. A. Well, there had not been any snow cleaned off of it there during the winter, and I think there was a path that went down about through the center of the sidewalk, somewheres near the center, a path three or four feet wide, and it was pretty icy; and I think the sides of the walk, the edges of it had more or less snow on it, was not so slippery; there had been no snow taken off of it that I know.”

We think this evidence was sufficient to take the case to the jury, and it was for the latter to say therefrom, under all the circumstances and the court’s instructions, whether the condition of the street at the time of the accident was such as to constitute negligence on the part of the city. Cities cannot be held to a rigid accountability.because of their sidewalks being rendered dangerous from natural accumulations of ice and snow. Where ice and snow accumulate upon a sidewalk in the ordinai’y manner, the city must be allowed due time to remove the same or to so deal with the conditions as to render the walks as reasonably safe as could ordinarily be expected under the circumstances. But it is a self-evident fact that where ice and snow are “piled up” on a sidewalk so as to render it exceedingly slippery it is a dangerous condition; and where that condition amounts to an obstruction to ordinary travel and is permitted to remain for several weeks without any effort on the part of the city to remedy it or protect pedestrians therefrom, it is sufficient to charge the city with negligence, in the absence of any reasonable justification being shown. The evidence here is to the effect that the snow and ice was “piled up” on the sidewalk and that it was exceedingly dangerous to walk upon this sidewalk in the condition it was in at the time of this accident, and that said condition was a serious obstruction to ordinary travel and had obtained for several weeks; that Mrs. Bull did not know of its slippery, dangerous, condition; that it was after dark. This evidence was sufficient legally to present the questions to the jury as to whether the city was negligent and as to whether such negligence was the proximate cause of Mrs. Bull’s injuries. Smith v. Spokane, 16 Wash. 403, 47 Pac. 888; Calder v. Walla Walla, 6 Wash. 377, 33 Pac. 1054; Piper v. Spokane, 22 Wash. 147, 60 Pac. 138; Ziegler v. Spokane, 25 Wash. 439, 65 Pac. 752; Sutton v. Snohomish, 11 Wash. 24, 39 Pac. 273, 48 Am. St. 847.

In justice to the learned judge who tried this case, it is conceded by counsel that, upon the settling of the statement of facts, he announced that, in granting the motion to dismiss and in denying the motion for new trial, he had inadvertently overlooked ■ a material portion of the evidence hereinbefore quoted; that otherwise his rulings would have been different upon those motions.

The judgment of the honorable superior court is reversed, and the cause remanded for a new trial.

Hadlet, C. J., Mount, Crow, and Dunbar, JJ., concur.

Fullerton, J., dissents.  