#### City of East Dubuque v. John Brugger.

Gen. No. 4,346.

1. Sidewalk—mere slippery condition of, does not confer cause of action. The mere slipperiness of a sidewalk, occasioned by ice or snow, not being accumulated so as to constitute an obstruction, is not such a defect as will make the city liable for damages occasioned thereby.

■ Action on the case for personal injuries. Appeal from the Circuit Court of Jo Daviess County; the Hon. Richard S. Farrand, Judge, presiding.

Heard in this court at the April term, 1904.

Reversed with finding of facts.

Opinion filed March 8, 1905.

M. H. Cleary, for appellant.

Matthews & Frantzen and Sheean & Sheean, for appellee.

Mr. Presiding Justice Farmer

delivered the opinion of the court.

Shortly after dark February 18, 1901, while appellee was on his way home from his work, he fell on a ■ sidewalk of appellant and fractured the small bone of his right leg just above the ankle. This suit was brought to recover damages for said injury. The first count of the declaration charges that the sidewalk was in bad and unsafe repair and condition and that divers planks were loose and unfastened, by means whereof plaintiff tripped and fell. The second count charges that the walk was in a dilapidated and rotten condition with large nails sticking above the *422surface of the planks, by means whereof plaintiff caught his foot on one of said nails and fell. The third charges that defendant suffered and permitted large quantities of snow and ice to be and remain on the sidewalk, by means whereof plaintiff slipped, stumbled and fell. The trial resulted in a verdict and judgment for appellee for $1,000, from which this appeal is prosecuted. There is no proof whatever in this record that loose or unfastened boards of the sidewalk, or its dilapidated and rotten condition, were to any extent or to any degree responsible for appellee’s fall. If this verdict can be sustained at all it must be¡ upon the allegations in the declaration of nails projecting above the sidewalk or the obstructions' of snow and ice. The proof shows the sidewalk in question was eight feet wide and constructed of boards lying crosswise on four stringers. A great mass of testimony was introduced at the trial by both sides for the purpose of showing the. condition of the walk as to decay, its state of repair, etc., but as these conditions in nowise contributed to appellee’s injury, it is unnecessary to discuss this evidence. At the place of the accident, the sidewalk was opposite two vacant lots. The day before appellee’s injury, snow and sleet had fallen and become soft, as the witnesses term it “slushy,” so that people passing along the sidewalk left footprints in it. There was considerable travel over this sidewalk and a well-beaten path was made near the middle of it. On 'the day of the accident it became quite cold and the soft snow and slush froze to ice. This rendered the pathway slippery and the depressions made by footprints when the snow and sleet were soft produced an uneven surface. Appellee testified he was walking in the path when one foot slipped, that he tried to steady himself with the other one but it caught on a projecting nail-head and he was thrown down and injured. He does not claim he saw any nail at the time of his injury or that he had seen nails projecting in the sidewalk at that place since September or October, before his fall. The walk was one used by. him in going to and from his place of work twice a day since September *423before the accident, and the reason given by him. for testifying that his foot caught on a nail was that the fall before he had seen nails projecting above the surface of the walk, and after he was carried from the place of his fall into a store near by, he saw a mark on his shoe heel which he assumed was made by catching on a nail-head. A number of witnesses examined the sidewalk at the place where appellee received his injury the next morning, and their testimony is that the walk was covered with ice and frozen snow to a depth of from one to three inches and no nail-heads projected above it. Besides this, it would seem from the testimony of appellee’s own witnesses that if nail-heads did project above the surface of the boards, the snow and ice covered them to such an extent that they could not be seen and appellee could not have come in contact with them. The testimony of witnesses who say they had never seen nails projecting above the surface of the walk fixes the time at some months before the accident and the height of their projection at about one-quarter of an inch. N early all of the witnesses, both for appellee and appellant, give the thickness of the frozen snow and ice on the sidewalk at from one to three inches. The proof excludes all idea that projecting nails caused or contributed to appellee’s injury, and this leaves for consideration only the proof under the third count of the declaration.

Appellee’s.counsel say in their brief and argument: “The contention in this case is not that the injury occurred through the slippery condition of the sidewalk alone, or the humps and ridges alone, but because of the uneven condition of the sidewalk and the nails sticking up, together with the ridges and humps of snow and ice.” It does not appear there was anything in the location or construction of the walk that tended to cause unusual quantities of ice or snow to accumulate thereon. It was eight feet wide and most of the witnesses say level, though a few testified it was about six inches lower on the side next to the vacant lots than on the street side. Prior to appellee’s fall there had been snowfalls from time to time, and it is insistéd by *424him that these were not cleaned off, but allowed to accumulate on that sidewalk till they caused obstructions of such a character as to render the walk unsafe for travel.

It does not appear the city authorities made any efforts to remove the snow and ice from the walk in question. Travelers passing over it would beat a path in the snow. This necessarily packed some of the snow firm and tight against the sidewalk. If there were any obstructions that renderd the use of this walk unsafe it was caused in this way, as there is no proof of any snow drifting or being thrown upon the walk other than what naturally fell there. The proof clearly shows the frozen snow and ice on the walk was from one to three inches thick, and that its rough and uneven surface was caused by footprints made while it was in the slushy condition, followed by sudden cold weather freezing it into ice.

Our Supreme Court said in City of Chicago v. McGiven, 78 Ill. 347: “ The mere slipperiness of a sidewalk, occasioned by ice or snow, not being accumulated so as to constitute an obstruction, is not such a defect as will make |he city liable for damages occasioned thereby.” One to three inches of snow and slush such as is shown by the evidence in this case does not in our judgment constitute an obstruction. It seems clear to us from the evidence that the only condition that rendered the walk unsafe was “ slipperiness,” which the Supreme Court says is not an obstruction.

City of Chicago v. McDonald, 111 Ill. App. 436, is a case involving the same principles of law as are here involved. What was complained of as an obstruction in that case was ice near the center of the sidewalk six inches thick, three feet wide and highest in the middle. The Appellate Court held the city was not liable to the plaintiff for injuries sustained as the result of a fall caused by said ice, and used the following language, which we think very appropriate to this case : “ The condition of the sidewalk in question as described by plaintiff’s witnesses, is a common incident of an Illinois winter. When snow falls, the passersby make a path usually near the center of the walk, the *425snow is trodden hard and more or less smooth and is frozen into ice, and remains, when the snow which has not been trampled- upon is swept, or blown, or melts away.”

In City of Quincy v. Barker, 81 Ill. 300,'the court say: “It is utterly impracticable for a city or incorporated town at all seasons of the year to keep streets and sidewalks free and clear from ice; and should the incorporation be held liable for every accident that might occur from an obstruction of this character, the result might be to bankrupt every incorporated town in the state.”

Cases similar in principles and some of them very similar in their facts will be found in Village of Gibson v. Johnson, 4 Ill. App. 392; City of Aurora v. Parks, 21 Ill. App. 461; Mareck v. Chicago, 89 Ill. App. 358, and Metzger v. Chicago, 103 Ill. App. 605. To our minds the evidence wholly fails to show a cause of action and we see no good purpose that could be served by remanding the cause.

The judgment is reversed.

Sever sed with folding of facts.

Finding of facts, to be incorporated in the judgment of the court.

We find as facts from the evidence, that appellee’s fall was not caused by the sidewalk being out of repair, dilapidated or rotten, or by its planks being loose and unfastened, or by a nail or nails projecting above the boards, nor by an obstruction of snow and ice, but was caused by the slippery condition of the walk resulting from the weather turning suddenly cold and freezing the soft snow and slush on the sidewalk into ice, and that appellant was not guilty of any of the negligence as charged in the declaration.