I cannot concur in the foregoing opinion, and will briefly give my reasons for dissenting therefrom.
The evidence shows that at the time of the accident there was a gutter or gully in the sidewalk in question, where, by reason of the conformation thereof, water would collect during rains, and also from the washing of windows in the buildings adjoining the sidewalk at this place, and that said gutter was so constructed and maintained that the water thus collected could not all flow off; also, that the concrete in the bottom of the gully was broken and had several times been patched by the city; also, that the sidewalk could easily have been so constructed as to turn the water therefrom into the streets proper, without any gutter or gully. It appears that said sidewalk was constructed by the defendant city; that it was on a principal street near the centre of the city, and in one of the most thickly settled portions thereof. The plaintiff and several of her witnesses testify that at the time of the accident this gully or gutter was filled with ice, some of the witnesses saying that it was practically smooth ice, others that it was ridgy and slanting, and still others that it was a regular cake of ice rounded off and slanting; but all testify that it was ice. The plaintiff swears that she slipped on this ice on the evening of the second of February, 1898, and received the injuries for which she claims damages, and that she was walking very carefully at the time. Other witnesses swear that they saw her slip and fall on said ice, and assisted her immediately afterwards; also, that other persons besides the plaintiff slipped on the same piece of ice on the evening in question, and they denominate it a dangerous place. The decided preponderance of the evidence is that the snow had all been cleared off from the sidewalk in front of the building where the accident happened before the happening thereof on the evening of February second, so that there was no obstruction there except the gutter and the ice therein. The *Page 529 evidence further shows that for two or three days next previous to the accident the temperature had been considerably below the freezing point. So that the ice formed in the gutter must have formed there before the heavy fall of snow which is so much relied on by defendant as the cause of the accident. The following facts, then, either clearly appear, or, if not, there is abundant evidence of the existence thereof, namely:
(1) There was a gutter or gully in the sidewalk over three inches deep (the concrete in which was broken), from which water could not all flow off; (2) whenever it rained, and whenever water was turned upon said sidewalk, it flowed into said gutter and remained there; (3) it was midwinter at the time of the accident; (4) the ice could not have formed there during the storm, or subsequently thereto and previous to the accident, on account of the low temperature; (5) the sidewalk at this point was practically clear of snow, and this gutter was filled with ice; and (6) the plaintiff slipped thereon and was injured. The ice being found in the gutter, and the temperature being so low that it could not have formed during the storm, the natural, and, indeed, the necessary inference is that it was there before the storm, and it was not necessary for the plaintiff to prove the day or hour when it was formed. It was there, and the plaintiff fell upon it, and it would not have been there had the sidewalk been properly constructed, and it was competent for the jury to find that a sidewalk constructed as this one was, in the centre of a city, was defective. Yeaw v. Williams, 15 R.I. 20;McCloskey v. Moies, 19 R.I. 299-300; Sauthof v. Granger,19 R.I. 608; Hall v. Lowell, 10 Cush. 260; Stone v.Hubbardston, 100 Mass. 49; Dillon on Mun. Cor. 4 ed. § 1003. The record therefore does, in my judgment, contain evidence of the dangerous character of the sidewalk, apart from the presence of the ice; and the case, therefore, falls within the decision of this court in Hampson v. Taylor, 15 R.I. 83, as ruled by Judge Dubois in connection with the defendant's motion for a nonsuit. In that case this court, by Durfee, C.J., said: *Page 530
"Where two causes combine to produce an injury, both in their nature proximate, the one being the defect in the highway and the other some occurrence for which neither party is responsible, the corporation is liable, provided the injury would not have been sustained but for the defect in the highway." Dillon on Municipal Corporations, ed. of 1881, § 1007. "It seems to us that this doctrine, at least where the concurring cause is a natural cause, or a pure accident for which no person is responsible, is the more reasonable doctrine. Indeed, we think it is the duty of the town, in making and mending its highways, to consider the natural effects of rain and snow and ice as affecting the safety and convenience of travel thereon, except so far as the statute exonerates them from duty in that regard." In Yeaw v.Williams, supra, this court, by Durfee, C.J., said: "The question of concurring causes was a question for the jury, under proper instructions from the court, which we must presume were given. We therefore cannot set the verdict aside unless it is palpably against the evidence."
In the case at bar there were two causes, or, rather, it was competent for the jury to find that there were two causes, of the accident — both in their nature proximate — namely, the gully in the sidewalk and the ice therein.
I entirely concur in the opinion of the majority of the court that a city is not liable for injury caused solely by the presence of snow or ice in a highway. The statute expressly exempts it from such liability except in cases where notice is expressly given. Gen. Laws R.I. cap. 72, § 13. But when, as in this case, there are two proximate causes, one the defect in the sidewalk and the other the presence of the ice in connection with such defect, which ice would not have been there but for the defect, thus making it a stronger case for the plaintiff in this regard than that of Hampson v. Taylor, the statute regarding notice has no application. Moreover, as already intimated, the presence of the ice which caused the plaintiff to slip and fall was occasioned by an artificial cause, which the city itself had created. And for this reason, *Page 531 also, the city was not entitled to notice of the existence thereof. See Winsor v. Tripp, 12 R.I. 454, at p. 456.
I am, therefore, of the opinion that the verdict ought to stand.