Ingram v. Libes

107 S.E.2d 920 (1959)

250 N.C. 65

Margaret H. INGRAM, Plaintiff, v. Cora T. LIBES, Executrix of Fred A. Libes, Defendant.

No. 392.

Supreme Court of North Carolina.

April 8, 1959.

Deal, Hutchins & Minor by: Roy L. Deal and Ed Pullen, Winston-Salem, for plaintiff, appellant.

Womble, Carlyle, Sandridge & Rice by: Charles F. Vance, Jr., Winston-Salem, for defendant, appellee.

PARKER, Justice.

Prior to 20 December 1955 Fred A. Libes, defendant's testator, entered into a contract to demolish a brick building situate at the southeast corner of Third and Liberty *922 Streets in the City of Winston-Salem. Before beginning the demolition Libes constructed a covered boardwalk 40 or 42 feet long adjacent to the sidewalk by the building to provide a temporary walkway for pedestrians, while the demolition was being carried out. During December 1955 the sidewalks adjacent to the building were closed, and the public used the boardwalk. The floor of the boardwalk was elevated about four inches above the surface of the street. At each end of the boardwalk was a wood ramp leading from the boardwalk to the street. The ramp at the western end of the boardwalk was about two and one-half feet wide, and about two to two and one-half feet long. It was long enough for plaintiff to take several steps on it. This ramp began at the end of the floor of the boardwalk, and had about a six-inch fall, due to an incline in the street level. A rubber mat was nailed down flat over the entire surface of this ramp. This ramp had no roof or covering over it. It had no handrail.

On 20 December 1955 there was a light snow in Winston-Salem from 6:50 a. m. to 9:15 a. m. By 9:00 a. m. there was one inch of snow on the ground. Streets were slippery from about 7:15 a. m. until about 10:00 a. m. The snow began to melt between 9:30 a. m. and 10:30 a. m., and continued to melt, with only a trace on the ground at 1:15 p. m. Underfoot conditions in shady spots were icy until about 1:00 p. m. The temperature was below freezing that morning until after 10:30 a. m.

On this morning plaintiff and her husband drove through the snow from their home in the country to Winston-Salem on business. They parked their car, and plaintiff went to the First Federal Building & Loan Association. After completing her business there, she walked westwardly along the sidewalk to the east end of the boardwalk constructed by Libes. Plaintiff was wearing shoes with medium height, broad heels and plastic overshoes with corrugated soles. There was no snow on the covered boardwalk. Plaintiff walked up the ramp at the eastern end of the boardwalk, and walked along the boardwalk to the ramp at the west end of the boardwalk. As she approached the west ramp, she saw that the whole ramp was completely covered with snow, which had frozen over and was icy. The crust of snow and ice there was at least an inch thick. Plaintiff testified on direct examination: "When I reached the western end of the walkway and started down the ramp, I was walking down very carefully, because I could see that it was slick, and I was taking very short steps, but my feet just went out from under me, both feet at the same time, and I sat down very hard and also landed on my left elbow." On cross-examination she testified: "I had no trouble seeing the ice and snow on the ramp there; I saw it very clearly before I started down. * * * As far as that ramp not being slick without snow and ice on it, a plank would not be slick if it is nothing on it to make it slick. I do not know whether or not the ramp had a rubber mat nailed over the top of it; it was covered with snow when I went down. * * * The ramp was covered with snow and ice, and I do not know whether there were any holes in it or not. I have testified that I do not know whether or not I had seen the ramp and the walkway before this; I did see it after this, and there were no holes or ridges in the ramp that I remember. The ice or snow was what I slipped on." Plaintiff suffered injuries in her fall.

Fred A. Libes constructed a covered boardwalk with a ramp at each end adjacent to a public sidewalk in Winston-Salem to provide a temporary walkway for pedestrians, while he was demolishing under contract a brick building adjacent to the sidewalk, and while the sidewalk was closed. Therefore, he was under substantially the same legal duty to pedestrians as the City of Winston-Salem would be, if it had been in direct charge of the demolition of the building for some purpose of its own. Cook v. City of Winston-Salem, *923 241 N.C. 422, 85 S.E.2d 696; Broadway v. King-Hunter, Inc, 236 N.C. 673, 73 S.E.2d 861; Presley v. C. M. Allen & Co., 234 N.C. 181, 66 S.E.2d 789; Kinsey v. City of Kinston, 145 N.C. 106, 58 S.E. 912. See also McQuillin, Mun.Corp., 3rd Ed., Vol. 19, Sec. 54.42.

Fred A. Libes was neither a guarantor nor an insurer of the safety of pedestrians using the boardwalk and ramps. Neither did he warrant that pedestrians using the boardwalk and ramps will be absolutely safe at all times. Presley v. C. M. Allen & Co., supra; Watkins v. City of Raleigh, 214 N.C. 644, 200 S.E. 424; Houston v. City of Monroe, 213 N.C. 788, 197 S.E. 571; White v. City of New Bern, 146 N.C. 447, 59 S.E. 992, 13 L.R.A.,N.S., 1166; Fitzgerald v. City of Concord, 140 N.C. 110, 52 S.E. 309; 25 Am.Jur., Highways, Sec. 373.

However, Fred A. Libes was under a legal duty to exercise ordinary care in the construction and maintenance of the boardwalk and ramps, and to take reasonable precautions to prevent injuries to pedestrians using them in a proper manner and with due care. Reasonable care is the degree of care demanded by the facts and circumstances of the particular case. It is the ordinary care which a reasonably prudent man would use, considering all the circumstances of the case, in the discharge of a duty owing to another. Welling v. City of Charlotte, 241 N.C. 312, 85 S.E.2d 379; Broadway v. King-Hunter, Inc., supra; Presley v. C. M. Allen & Co., supra; Watkins v. City of Raleigh, supra; Houston v. City of Monroe, supra; White v. City of New Bern, supra; Fitzgerald v. City of Concord, supra; 25 Am.Jur., Highways, Sec. 543; 63 C.J.S. Municipal Corporations § 802.

Plaintiff contends that the defendant was negligent in not building a roof or covering over the ramps to protect them from snow and ice, in providing no handrail for the western ramp, and in constructing the ramp at the western end of the boardwalk with a steep fall of six inches from the end of the boardwalk to the street, so that the snow and ice on the western ramp made it more dangerous for pedestrians than the sidewalk would have been if the boardwalk had not been built, and the sidewalk closed.

One engaged in work on or demolishing buildings abutting on a sidewalk or street must use ordinary care to prevent injury therefrom to travelers on pain of liability for the resulting damage. Johnson v. City of Huntington, 80 W.Va. 178, 92 S.E. 344, 11 A.L.R. 1337. "The person doing such work is sometimes required by statute or ordinance to maintain a covered passageway in front of the building, or to take other specified precautions, for the protection of travelers on the adjacent street or walk, and non-compliance therewith renders such person liable for injuries which occurred by reason of such failure, or which would not have occurred had such duty been performed. Such a provision is intended to protect persons on the walk from substances falling from the building while work is in progress there, whether such substances fall directly from the face of the building or are hurled from inside it, at least during all hours while work on the building is in progress." 25 Am.Jur., Highways, p. 828. Plaintiff has not alleged the violation of any statute or ordinance requiring that the ramp be covered to protect it from snow and ice, neither has she cited in her brief any case holding that the ramp must be covered to protect it from snow and ice, nor have we found one. In our opinion, defendant was not negligent in not building a cover over the ramp to protect it from snow and ice.

This is said in 63 C.J.S. Municipal Corporations § 809: "The mere existence of a descent, slope, or step in the sidewalk does not render it (a municipal corporation) liable for accidents to persons in stepping from one elevation to another, where the inequality or inclination is such *924 that injury therefrom could not reasonably be anticipated." To the same effect see Watkins v. City of Raleigh, supra; Murchison v. Washington Terrace Apartments, 245 N.C. 72, 95 S.E.2d 133. Sidewalks and streets have slopes and inclines. There is evidence that the western ramp's entire surface had nailed on it a rubber mat, which was covered with snow and ice when plaintiff fell. The construction and the maintenance of the ramp at the western end of the boardwalk was not so steep or abrupt, nor so excessive or dangerous, as to constitute negligence, or require a handrail.

This is plaintiff's testimony as to what she saw when she reached the ramp at the western end of the boardwalk: "I had no trouble seeing the ice and snow on the ramp there; I saw it very clearly before I started down. * * * The ice or snow was what I slipped on." The ramp was not unsafe or dangerous in its original condition. It was made unsafe solely by the ice and snow.

In Wesley v. City of Detroit, 117 Mich. 658, 76 N.W. 104, the Court said: "All inclined sidewalks become dangerous for pedestrians when covered with ice. All the law requires is that the municipality shall keep them otherwise in a reasonably safe condition."

This Court said in Browder v. City of Winston-Salem, 231 N.C. 400, 57 S.E.2d 318, 321: "The mere slipperiness of a sidewalk occasioned by smooth or level ice or snow, formed by nature, is not sufficient to charge the municipality with liability for an injury resulting therefrom where the walk itself is properly constructed and there is no such accumulation of ice and snow as to constitute an obstruction."

"The mere fact that an accident results from the slippery condition of the walk, concurring with an ordinary slope therein, does not render the municipality liable for any resulting injuries." Annotation 41 A. L.R.2d p. 745.

Townsend v. City of Butte, 41 Mont. 410, 109 P. 969, relied on by plaintiff, is distinguishable. In that case the city was held liable for injuries caused by its failure to remove from a sidewalk snow and ice which had accumulated and formed a smooth, slippery and slanting surface over which it was dangerous for pedestrians to travel, and which condition the city permitted to remain for an unreasonable time, to-wit, many days before plaintiff's injury, after the city had actual knowledge of such condition.

The evidence shows no defect in the construction and maintenance of the western ramp. It had an ordinary slope. Whether the snow and ice on the western ramp made it more dangerous for pedestrians than the sidewalk would have been, if the boardwalk and ramps had not been built and the sidewalk closed, is not the test of defendant's liability. The test is whether the defendant exercised ordinary care in the construction and maintenance of the western ramp and took reasonable precautions to prevent injuries to persons using it.

In Nolan v. King, 97 N.Y. 565, the defendant, with due authority from the municipal authorities, removed the sidewalk of a city street, and excavated for the purpose of constructing a vault. He built a bridge over the excavation, which in order to allow the work of construction to proceed was necessarily raised above the level of the street. The Court held that the defendant was not required to make the same as perfectly safe and convenient as was the sidewalk removed. His duty was to build it with care and prudence, such as will reasonably protect persons passing. The Court further held that it was error for the trial court to charge the jury that it was defendant's duty "to have the bridge constructed in such manner that the plaintiff would not be subjected to any more personal risk than if the sidewalk had been there instead of the bridge."

*925 Plaintiff's injuries were caused solely by the new fallen snow and ice on the western ramp, which made it slippery. The judgment of involuntary nonsuit is

Affirmed.