Opinion
Rehearing Denied Jan. 28, 1975.
Sheldon, Bayer, McLean & Glasman, Richard H. Glasman, Denver, for defendant-appellant and cross-appellee.
Lewis & Ellwood, Henry Ellwood, Denver, for plaintiffs-appellees and cross-appellants.
Duane O. Littell, Michael Heinz, Denver, for defendant and cross-appellee.
COYTE, Judge.
Defendant Schroeder appeals from a judgment entered against him based upon a verdict in favor of plaintiff because of injuries she received in a slip and fall accident on the sidewalk in front of Schroeder's property. He contends that the evidence does not support the verdict and that the jury was improperly instructed. Plaintiffs cross-appeal contending that the defendant City of Arvada should not have been exonerated by the jury and that the damages awarded were inadequate. We reverse the judgment.
On January 25 and 26, 1973, approximately 5 to 6 inches of snow fell in Arvada. On January 29, 1973, the Brames parked their car downhill from where they were going to visit for the evening, and, as Mrs. Brame stepped out of her car onto the sidewalk owned by the city and abutting Schroeder's property, she slipped and fell on the sidewalk which was covered with ice and snow and fractured her ankle. Schroeder testified that it was the custom for either him or his son to clear the walk after each snowstorm, but he was absent from the city from early January through late February 1973, and his son could not recall whether he had shoveled the walk after the late January snowstorm. One witness testified that the walk had not been shoveled during the entire time Schroeder was gone. Operating under comparative negligence instructions, the jury found Schroeder liable and ascertained Mrs. Brame's damages to be $3,100, and Mr. Brame's damages to be $200.
The trial court should have directed a verdict in favor of Schroeder. There was no direct testimony that either Schroeder or his son had shoveled snow during the snowy period in question, and there was testimony that the walk had not been cleared during the pertinent period. Moreover, while there was testimony that there was an accumulation of snow and ice on the walk which was rough and ridged at the time Mrs. Brame slipped and fell, it would be mere speculation to conclude that not only had the walk been shoveled but also that the shoveling had been done in a negligent manner, thereby causing a rough and ridged condition. Hence, there was no evidence presented from which it could be concluded that any affirmative act of Schroeder caused the formation of the ice on the sidewalk or its rough and uneven surface, and, accordingly, the verdict against Schroeder must be set aside. Kanter v. Denver, 153 Colo. 389, 386 P.2d 349; W. T. Grant Co. v. Casady, 117 Colo. 405, 188 P.2d 881.
Furthermore, the court erred in giving an instruction relating to Arvada City Ordinance No. 142, which ordinance reads as follows:
'It shall be the duty of the owner or occupant of the premises abutting or bordering upon any street, avenue or highway in a city to keep the sidewalks in front of and adjoining to his premises clear and safe for pedestrians. Such owner or occupant shall remove snow, ice and slush within six hours after the cessation of any storm or fall of snow; provided that if such storm or fall of snow takes place and occurs in the night time then the occupant or owner shall have until 12 noon the following day to clear such sidewalks.'
'In the event of the failure of the owner or occupant to remove the snow, ice and slush from the sidewalks within the time set forth in this Section, the city may remove the snow, ice and slush from the sidewalks and recover all expenses incurred in having the snow, ice and slush removed from the owner, occupant or both.'
The city cannot shift its responsibility by ordinance to the abutting land owner to remove an accumulation of snow and ice which has created a dangerous condition. The above ordinance is a penal ordinance and cannot serve as a basis for liability. Grant v. Casady, Supra; Kanter v. Denver, Supra. Hence, the giving of an instruction relative to the above ordinance would only tend to confuse the jury. An instruction should not be given which tends to mislead or direct the minds of the jury from the real factual issues. Houser v. Eckhardt, 168 Colo. 226, 450 P.2d 664. Since a factual issue was presented as to whether the city had actual or constructive notice of the icy condition of the walk, and since the jury's allocation of fault between Mrs. Brame and the city may have been affected by the erroneous instruction, the case must be retried against the city. Accordingly, the judgment against defendant Schroeder is reversed and cause remanded with directions for a new trial against the city on all issues.
RULAND and VanCISE, JJ., concur.