DELLA CATON, defendant in error, had judgment in the court below against plaintiff in error, the City and County of Denver, for injuries sustained by her when she fell on an icy crosswalk at the intersection of 24th and Stout streets January 15, 1939. The city is here seeking a reversal of the judgment. Errors assigned are predicated upon the grounds argued in the city's brief: (1) That it did not appear from a preponderance of the evidence that defendant had notice of the defect alleged to have been the cause of plaintiff's injuries for a sufficient period of time prior to the accident to be chargeable therewith; (2) that the crosswalk obstruction complained of did not constitute such an unusual or dangerous obstruction as to charge the defendant with actionable negligence; (3) that defendant in error failed to sustain the burden of proof in respect to her fall being the result of the icy obstruction in question; (4) that the court erred in refusing to give instruction No. 1 tendered by plaintiff in error.
[1] The accident occurred at about six-thirty o'clock a.m., January 15, 1939, when it still was very dark, and it appears that there was no street light in the immediate vicinity. The place was "pretty slick, and it was a high place," consisting of ridges of ice sloping sharply. No evidence was offered by the city concerning the condition *Page 172 of the crosswalk, the obstructions or the effect upon the crosswalk of two snowstorms, the first occurring January 8, and the second January 12. It may be assumed that these facts were solely within the knowledge of the city, and its failure, under the circumstances, to offer evidence concerning them may very well permit the presumption that had any been presented, it would have been adverse to its contentions. That plaintiff had no previous knowledge of the physical conditions as they existed at the time of the accident is clear.
[2-4] In support of its contention of nonliability, the city cites the first clause of section 1802, page 1024, 43 Corpus Juris. We quote the entire sentence as follows: "A municipality is not held to as strict accountability for permitting ice and snow to accumulate on a crosswalk as on a sidewalk, but it must exercise reasonable or ordinary care to keep its crosswalks in a reasonably safe condition, and what amounts to such care will depend on the circumstances of each case, more care being required where the danger is great than where it is slight." Conceding this to be a correct statement of the applicable law, we are primarily concerned with the conclusion to be drawn from the facts and circumstances in the case, not as they appear to us, but as they are presumed to have been found by the jury in returning its verdict in favor of plaintiff. Denver Salt Lake Ry.Co. v. Granier, 104 Colo. 131, 89 P.2d 245. In the case of Denver v. Dean, 10 Colo. 375, 378, 16 Pac. 30, we held that one way in which a municipal corporation is charged with constructive notice is where the exercise of ordinary care on its part involves the anticipation of defects that are the natural and legitimate result of use and climatic influences. See, also, Denver v. Hyatt,28 Colo. 129, 63 Pac. 403. Counsel for defendant in error correctly contends that under this statement the evidence was sufficient to authorize the submission of the issue of constructive notice to the jury for its determination. By the giving of instruction No. 7 the question was *Page 173 properly submitted. That it was an issue for a jury is clear. Boulder v. Niles, 9 Colo. 415, 12 Pac. 632; Alamosav. Johnson, 99 Colo. 134, 60 P.2d 1087; Higgins v.Boulder, 105 Colo. 395, 98 P.2d 996. Questions of preponderance of evidence, burden of proof, and whether the obstruction was dangerous, are matters to be determined by a jury, not by us; consequently defendant's contention based upon the first three grounds must be overruled.
[5] The fourth ground is founded upon the proposition that the trial court committed error in refusing the city's tendered instruction No. 1, which reads as follows: "The court instructs the jury that a pedestrian in traversing over the crosswalks is charged with the duty of using ordinary care in traversing thereon, and under conditions of increased danger there is imposed a duty of increased care." In support of their contention counsel for the city cite the case of Alamosa v. Johnson,supra. The vice in the tendered instruction arises from the assumption therein that there were conditions of increased danger. In the Alamosa case we called attention to the following language appearing in one of the instructions given by the court in that case: "Under conditions of increased danger, however, there is imposed upon such persons a duty of increased care, commensurate with the increased danger, if any." We are in accord with this statement. If the tendered instruction here under consideration had been qualified by similar language, a proper issue would thereby be submitted to the jury, leaving for its determination the question whether there was present any increased danger calling for increased care on the part of plaintiff. In our opinion, the trial court properly refused to give the tendered instruction.
The record disclosing no error, the judgment is affirmed.
MR. JUSTICE BAKKE dissents. *Page 174