Hutchison v. MONTGOMERY WARD & CO.
Hutchison v. MONTGOMERY WARD & CO.
Opinion of the Court
Opinion by
This was a trespass action for personal injuries instituted by Alice Hutchison, appellant, against Montgomery Ward & Company, appellee, and Cote Realty Company, occupier and owner, respectively, of a building on Main Street, in the City of Butler, Pennsylvania. Cote Realty Company was. relieved of liability by a directed verdict and the jury found in favor of Mrs. Hutchison in the amount of $3,000. The court below entered judgment non obstante veredicto for Montgomery Ward & Company, after argument, and Mrs. Hutchison has appealed.
About 2:00 P.M. on December 29, 1945, during a thawing temperature, snow and ice, perhaps a bushel in quantity, fell upon appellant from the roof of the building occupied by appellee, as she was walking on the abutting public sidewalk. The mass that fell contained lumps of snow and ice three or four inches wide and four or five inches long, and was described as having “a
No complaint is made that the court erred in directing a verdict for the owner, Cote Realty Company. The sole question is Avhether it was error to enter judgment for appellee notAvithstanding the verdict in favor of appellant. On this question, the opinion of the court below states: “Considering the evidence that the snow had melted aAvay to the extent of at least four inches, we are of the opinion that there was no extraordinary condition prevailing at the time of the accident and prior thereto which would cause the [appellee], as an ordinary, careful, prudent person, to believe that snow and ice was likely to come out over the gutter and the coping and fall to the street . . . Clearly there was no actual notice of any negligent condition existing upon the roof . . . Taking into consideration that there is no evidence of any previous falling of snoAV and ice from the roof; that the heavy snowfall had been reduced to one-fourth of its original size; and that a proper and standard constructed gutter and coping existed immediately adjacent
Appellant may not recover by merely showing that she was injured. There must be evidence to support a finding of a breach of the occupier’s duty to a user of the sidewalk. Compare Pope v. Reading Company, 304 Pa. 326, 331, 156 A. 106; Beebe et al. v. Philadelphia, 312 Pa. 214, 167 A. 570; Beck v. Germantown Cricket Club, 228 Pa. 173, 77 A. 448; Vendig v. Union League of Philadelphia, 291 Pa. 536, 140 A. 503. The evidence does not support the contention that it was a mass of ice and snow permitted by appellee to collect in the gutter or on the ledge of the building which fell and injured appellant. On the contrary, her own evidence establishes that it was a part of the normal accumulation on the roof itself that fell, covering an area of about two square feet. Any hazard created by the extraordinary snowfall on December 24 had been eliminated by melting. The depth of the snow had been reduced to three inches and there was an additional inch of snowfall on December 27, making a total of only four inches of snow on the roof on December 29, the date of the accident. The building was of a common and approved type of construction and was in good repair. It was equipped with metal snow-guards or ice-breakers, spaced eighteen inches apart, and with a thirteen-inch wide ledge at the lower edge of the roof containing a box-type gutter six inches wide and eight inches deep, as precautions against falling ice and snow. There is no testimony that snow or ice had fallen from this roof on any prior occasion and no evidence that the accumulation on the roof was of an
To permit a recovery under these circumstances would be to hold that the owner or occupier of a property must prevent falling ice and snow at his peril. No Pennsylvania case has been cited, however, to support such a proposition. Our law imposes no absolute duty on an owner or occupier of property to keep his premises free from ice and snow at all times: Whitton v. H. A. Gable Company, 331 Pa. 429, 431, 200 A. 644. The question is not one of safety but of negligence: Ross et al. v. Pennsylvania Railroad Company, 355 Pa. 119, 121, 49 A. 2d 370. As recognized by this Court in Rickey v. Armour, 293 Pa. 127, 129, 141 A. 841, “Gutters along the edges of eaves will clog up from ice and snow and overflow under certain weather conditions. This is inherent in the nature of eaves and gutters, just as it is in roofs without them, and their maintenance could not ordinarily be held negligent.” To charge the owner or occupier with culpability in such a case it must not only appear that the condition existed for so long a time as to visit him with knowledge of it, but must also appear that the danger was sufficiently obvious that he should have realized that someone might be injured because of it: Restatement, Torts, section 364. Clearly the mere fact that snow or ice fell from the roof is not of itself sufficient proof of negligence. It was incumbent on appellant to show some unusual condition existing before the accident that would lead appellee, through its employees, in the exercise of reasonable and ordinary care, to believe that additional precautions were required. See Pieckowicz v. Oliver Iron & Steel Company et al., 351 Pa. 209, 212-213, 40 A. 2d 416.
The present case is to be distinguished from cases like Reedy v. Pittsburgh, 363 Pa. 365, 69 A. 2d 93, where the pedestrian was injured by ice on the sidewalk which formed as a result of antecedent negligence in permitting the premises to become defective. Here, the presence of snow on the roof of the building occupied by appellee was not caused by any act or omission on its part, but was a natural phenomenon incident to our climate. Also distinguishable are Klepper v. Seymour House Corporation, 246 N. Y. 85, 158 N. E. 29, 62 ALR 955, and similar cases, relied upon by appellant, where the building was so constructed as inevitably to collect snow and ice and discharge it into the street, or where it appeared from the evidence that snow-slides from the roof during the winter months occurred with such frequency as to charge the owner or occupier with notice of the dangerous condition.
Judgment affirmed.
The foregoing opinion was prepared by the late Justice Patterson. It was adopted by a vote of the Court before his death. It is now filed as the opinion of the Court.
Concurring Opinion
Concurring Opinion by
I concur in the majority opinion. There is no substantial dispute about the fact that “perhaps a bushel of snow” fell from the defendant’s roof onto the plaintiff and injured her. Whether the snow which fell upon the plaintiff could be called “a mass.of snow and ice” is open to question for the word “mass” connotes the idea of considerable size and that word is usually not applied to a mere bushel of anything. However, the question is not how much snow fell on the plaintiff, but was her
We can take judicial notice of the fact that in the latitude of Butler
All of us who reside in the northern half of Pennsylvania have frequently seen snow falling from roofs upon passers-by, and upon social and business invitees to homes. We have seen such falls cause momentary annoyance. But the individual who has ever seen or heard
To clear snow from the roof on one’s house is a difficult and hazardous undertaking. Very few householders have either the ability or the agility to do it. If they attempted the feat they would probably bring disaster upon themselves by falling from the roof. Neither is it easy to secure help to remove snow from roofs. To clear all the roofs in any municipality from snow in a normal winter would require the help for weeks of an army of laborers and it would be difficult to secure them. Only young and skillful men are qualified for such work. When two years ago there was a very heavy fall of snow in New York City it required millions of dollars and thousands of laborers and much time to remove snow from the streets and sidewalks, without any attempt to remove it from the housetops.
No one has ever made a clearer statement of the law of negligence than Justice Holmes when, in Commonwealth v. Pierce, 138 Mass. 165, 179, he said: . . if the thing is generally supposed to be universally harmless, and only a specialist would foresee that in a given case it would do damage, a person who did not foresee it, and who had no warning, would not be held liable for the harm. If men were held answerable for everything they did which was dangerous in fact, they would be held for all their acts from which harm in fact ensued. The use of the thing must be dangerous according to common experience, . . .”
This statement applies to this case. An accumulation of snow on one’s roof is “generally supposed to be harmless”. The depth of the snow at the time it fell on the plaintiff was only four inches. It was somewhat iced but that fact was not known to anybody until after it had fallen. Ordinarily four inches of snow upon a roof is not potential for harm and “only a specialist would fore
According to common experience the chances of anyone’s being harmed by snow or particles of ice falling from a roof are negligible, and these chances are only incidents of residence in a rugged Avinter climate, just as the chance of being hit by a falling cocoanut is an incident of residence in a tropical climate. In winter climates social invitees, grocery boys, newsboys, postmen, milkmen, and servants pass points adjacent to homes where snow falling from the roofs would reach them, without apprehending they are in any place of danger, and that ordinarily they are not in a place of danger at such times is evidenced by the fact that no one has cited any Pennsylvania cases in which anyone has recovered damages for injuries done by falling snow.
In the cited case of Beebe v. Phila., 312 Pa. 214, 167 A. 570 (1933) the accumulation of snow and ice which caused the injury was on a sideAvalk and not on the roof of the house. According to common experience snow and ice upon a sidewalk is a menace to pedestrians and our official reports are replete with cases in which pedestrians have recovered damages because of slipping on ice and snow on sidewalks.
In the cited case of Pope v. Reading Company, 304 Pa. 326, 334, 335, 156 A. 106, the thing which fell and caused the injury was a piece of cement from the top of a wall. There is a vast difference between falling cement and falling snow. We said in that case: “. . . pieces of concrete had been dropping from the coping of the wall for at least two weeks before the accident. Therefore, de
Appellant’s paper book cites the case of Klepper v. Seymour House Corporation, 146 N. Y. 85, 158 N. E. 29. That case is easily distinguished on its facts from the instant case. There “a mass of ice and snow” which fell upon the plaintiff weighed about 150 pounds. It fell from the roof of the Seymour House, which had attached to it a cornice which extended out over the street sixteen to twenty inches. It sloped at an angle of fifty degrees. As the court pointed out: “After heavy storms, snow and ice would accumulate on this slanting cornice and slide off onto the sidewalk in a mass of varying dimensions and Aveight. This had happened three or four times during the winter previous to the injury to the plaintiff. It had happened every winter. Members of the city government were familiar with the condition. The policeman reporting it to his superior was virtually told to mind his OAvn affairs. . . . The frequency with Avhich this thing had happened during all the winters since the defendant was the OAvner of the property was sufficient to charge it with notice of the condition.” If in the instant case it had been shown that in previous winters snow and ice had been allowed to accumulate on defendant’s building and slide off on the sidewalk in masses Aveighing 150
In the cited case of Coman v. Alles, 198 Mass. 99, 83 N. E. 1097, the facts are wholly distinguishable from the facts in the instant case. There a person fell by slipping on the ice on or near the sidewalk. There was no injury from ice or snow falling from any roof.
The cited Section 364 of the Restatement of Torts refers to artificial conditions on land or property. Snow is not an “artificial condition” created by the landowner himself or by a third party.
Section 368 of the Restatement of Torts in describing conditions on one’s property imposes liability only when the condition involves an unreasonable risk to others. Certainly the presence of four inches of snow on a roof does not involve an unreasonable risk except to the man who would go up to remove it. The Comment in Section 368 states that: “A possessor of land is not required to fence or otherwise guard a dangerous excavation caused by a flood or freshet, even though it is immediately contiguous to a public highway.” If this is sound law certainly a possessor of a piece of real estate is not required to remove four inches of snow even if it lies on property contiguous to a highway. Snow on a roof is much less dangerous to pedestrians than is the excavation referred to in the above comment.
It would be unreasonable to place upon every possessor of a home or other building the burden of removing promptly from his roof each fall of snow as it occurs during a winter. A municipal ordinance requiring the possessors of homes or other buildings, situated on public streets, to remove falls of snow promptly from the roofs of their buildings would be a legal rarity. That cases of recovery for injuries caused by snow falling from roofs are almost unknown is evidenced by the fact that
Courts have never subscribed to the unjust and impracticable rule that the sustaining of mere injuries arising from some instrumentality within the control of another is proof of that other’s negligence (except in that limited number of cases where the doctrine of res ipsa loquitur can be invoked). This Court said in Hoag v. Lake Shore & Michigan Southern Railroad Co., 85 Pa. 293: “There is a possibility of carrying an admittedly correct [legal] principle too far. It may be extended so as to reach the reductio ad absurdum, so far as it applies to the practical business of life. We think this difficulty may be avoided by adhering to the principle substantially recognized in The Railroad Company v. Kerr, [12 P. F. Smith 353] and The Railroad Company v. Hope [30 P. F. Smith 373], that in determining what is proximate cause [of injury], the true rule is, that the injury must be the natural and probable consequence of the negligence — such a consequence as, under the surrounding circumstances of the case, might and ought to have been foreseen by the wrongdoer as likely to flow from his act” (Italics supplied.)
President Judge Graff of the court below correctly enunciated the law of Pennsylvania when he said in his opinion: “The mere happening of an accident and injury does not prove negligence. The unexplained fall of an object from a building is not sufficient to render the owner thereof liable for negligence: Joyce v. Black, 226 Pa. 408; Hartman v. Miller, 143 Pa. Super. Ct. 143. The burden of proof therefore rests upon the plaintiff in this case of establishing negligence upon the part of the defendant before there can be a recovery. The only evidence offered in this respect is the falling of the ice
In the Joyce v. Black case this Court held that in a suit against the owner of a building by a person injured by the fall of an ornamental bracket from the front of the building, the mere fact of the fall of the bracket does not raise the presumption of negligence and the rule res ipsa loquitur does not apply. Certainly if the fall of an ornamental bracket from the front of a building does not support a claim of negligence against the owner of the building, the common phenomenon of snow falling from the roof of a building in winter does not support any claim of negligence made against the occupier of the building. The Joyce v. Black case was cited and its controlling principle re-enunciated by Mr. Justice Horace Stern, speaking for this Court, in Doerr et al. v. Rand’s et al., 340 Pa. 183, 16 A. 2d 377.
I would affirm the judgment of the court below.
Butler is on a line drawn east and west parallel to the southern boundary of Pennsylvania, half way between that line and the straight line of the northern boundary (disregarding the small northwestern projection).
Dissenting Opinion
Dissenting Opinion by
I think this decision creates an undesirable exception to the general rule imposing liability on the possessor of land for damage resulting from dangerous conditions negligently allowed to remain on the land and that the court reaches its conclusion by taking an erroneous view of the evidence.
1. The erroneous view of the evidence results from the failure to apply the rule that a plaintiff who has been deprived of his verdict by a judgment n. o. v. is entitled to have the reviewing court consider only the evidence which supports the verdict and to give him the benefit qf every inference of fact reasonably deducible
It is beyond dispute that on the thirteen inch ledge extending outward from the sixty degree slope of the mansard roof, twelve feet high, there remained, following a heavy snow of a week before, an accumulation of snow and ice partly lying against the slope, that had
Confronted with that evidence supporting the verdict, this Court should not disregard but should apply the familiar rule accepting the evidence supporting the verdict; and rejecting what is inconsistent with it; it would then be impossible to say, as the Court does say, that “the evidence does not support the contention that it was a mass of ice and snow permitted by appellee to collect in the gutter or on the ledge. . . .”
2. The decision creates an undesirable exception to the general rules of liability of the possessor of land. The rules are stated in sections 364 and 368 of the Restatement, Torts: Section 364 states, “A possessor of land is subject to liability for bodily harm caused to others outside the land by a structure or other artificial condition thereon, which the possessor realizes or should realize as involving an unreasonable risk of such harm, if (a) the possessor has created the condition, . . .” Section 368 states, “A possessor of land who creates or maintains thereon an excavation or other artificial condition so near an existing highway that he realizes or should realize that it involves an unreasonable risk to others accidentally brought into contact therewith while traveling with reasonable care upon the highway, is subject to liability for bodily harm thereby caused to them.” Comment a states, “a. Danger due to natural causes. In order that the rule stated in this Section shall apply, the condition must not only be one which
The application of the rule is illustrated in many of our cases. Very recently in Reedy v. Pittsburgh, 363 Pa. 365, 69 A. 2d 93 (1949), in which a number of cases on the subject were cited, we held liable one who collected the rain water from his roof into a single down-spout and discharged it over the sidewalk thereby creating a dangerous condition during winter weather. There is no difference between that case and this to justify the application of a different measure of liability in this case. The verdict in the present case implies that there was sufficient time between the heavy snowfall of some days before and the afternoon of plaintiff’s injury, to put defendant on notice of the dangerous con
The evidence, in the present case, as I have said, is sufficient to support the finding implied in the verdict that the condition resulting in plaintiff’s harm existed long enough to put defendant on notice.
The majority opinion states, “It was incumbent on appellant to show some unusual condition existing before the accident that would lead appellee, through its employees, in the exercise of reasonable ordinary care, to believe that additional precautions were required.” I cannot agree with that. I think the plaintiff was not bound to show “some unusual condition existing before the accident . . It was necessary only to show that in ordinary circumstances, in ordinary winter weather,
If we apply the rule that the evidence must be read in the sense most favorably supporting the verdict, the evidence leaves no doubt that the heavy snowfall took place five days before the injury; what should have been foreseen was that, in the intervening five days of alternately thawing and freezing weather, the accumulation of snow and ice on the ledge, plainly visible from the sidewalk, might slip down and do harm. See comments c. d and e to Section 302, Restatement, Torts,
The occupier is of course entitled to a reasonable time to remove snow after it has fallen. In Beebe v. Phila., 312 Pa. 214, 167 A. 570 (1933), it appeared that the ordinance allowed six working hours after the snow ceased. There was no such ordinance in Butler, where, of course, the jury would be called on to consider what the reasonable time would be.
For example, in Pope v. Reading Co., 304 Pa. 326, 331, 156 A. 106 (1931), Mr. Justice Maxey said. “On account of the fact that ordinarily more people pass on the sidewalk in front of one’s property than are ever likely to pass over or congregate on a lot alongside of one’s property, the person in possession of property is held to a higher degree of care in respect to the safe-guarding of a wall or other structure in front of that property and near a street or footway than he is to his wall or structure not adjoining a public highway or footway.”
Section 302 provides: “A negligent act may be one wbicb: . . . (b) creates a situation which involves an unreasonable risk to another because of the expectable action of the other, a third person, an animal or a force of nature.”
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